Retirement of a Member: Baroness Hilton of Eggardon
 - Announcement

Lord McFall of Alcluith: My Lords, I should like to notify the House of the retirement, with effect from 5 November, of the noble Baroness, Lady Hilton of Eggardon, pursuant to Section 1 of the House of Lords Reform Act 2014. On behalf of the House, I thank the noble Baroness for her much-valued service to the House.

Cancer Drugs: Licensing and Approval
 - Question

Baroness Morgan of Drefelin: To ask Her Majesty’s Government what steps they are taking to align the timelines between cancer drugs being licensed and being approved by the National Institute for Health and Care Excellence.

Baroness Morgan of Drefelin: My Lords, I beg leave to ask the Question standing in my name on the Order Paper and declare an interest as chief executive of the charity Breast Cancer Now.

Lord Kamall: NICE is committed to publishing draft guidance on cancer drugs around the time of licensing, with final guidance published within three months of licensing wherever possible. The MHRA and NICE work closely together to ensure that licensing procedures and health technology assessments are as streamlined as possible. For cancer drugs, the NHS in England provides funding from the point of draft positive NICE guidance, delivering faster access to promising new cancer treatments.

Baroness Morgan of Drefelin: My Lords, the delay between licensing and NICE technology appraisal has been dealt with in the case of two out of the three drugs approved under Project Orbis, through agreements between NHS England and the drug company concerned. Unfortunately for women with secondary incurable breast cancer, for which there are very few treatment options, no agreement has been made with the drug company Gilead, and this creates a new treatment lottery. Are interim access agreements meant to be the permanent solution, and if not, what can be done to address this lottery and close the gap between Orbis licensing and NICE appraisal?

Lord Kamall: I thank the noble Baroness for her Question. Clearly, there is distress and concern at the delay between MHRA approval and NICE licensing.  The drug Trodelvy was licensed by the MHRA for both unresectable locally advanced and metastatic triple-negative breast cancer through Project Orbis. On NICE’s appraisal of Trodelvy to determine its clinical and cost-effectiveness for use in the NHS, NICE hopes to have guidance next year but, in the meantime, NHS England, NHS Improvement and NICE continue to work with the manufacturer to explore options for interim access to Trodelvy.

Lord Hunt of Kings Heath: My Lords, despite what the Minister says, the fact is that innovative new drugs such as the cancer drugs the noble Baroness mentioned are reaching patients in this country far too slowly. We lag behind many other countries. How can we expect to be a centre of science and research if the NHS is so slow to develop the medicines that are produced?

Lord Kamall: I think noble Lords will agree with that frustration at the speed of approval and licensing, but in most cases it does happen speedily. One of the central issues is making sure that there is confidence in the ability to purchase. We are looking at a number of different ways to accelerate the process, including through ILAP—the accelerated partnership—while also making sure that MHRA and NICE can speak where they are allowed to, given some of the legal restrictions on their discussions. For example, I went a couple of weeks ago to a board-to-board meeting between MHRA and NICE at which they discussed issues of common concern.

Baroness Brinton: My Lords, picking up on the point of the noble Lord, Lord Hunt, there is a particular problem in the United Kingdom with NICE and MHRA appearing not to talk together as much as they should to help streamline the process, where that is appropriate. An academic paper in March demonstrated that the CDC in America has a much stronger, streamlined system that works, with far fewer drugs being delayed. How can NICE and MHRA learn from what is happening abroad?

Lord Kamall: It is important that we learn the best lessons from abroad on incredibly important issues such as this. Where NICE and MHRA are allowed to talk to each other and co-operate—there are some restrictions, as I am sure many noble Lords are aware—both clearly recognise that there are great concerns and distress on the part of the many patients who want access to these drugs, and they are trying to work out how they can speed up the process as much as possible.

Baroness Masham of Ilton: My Lords, how can we speed up the process once new, innovative medicines have been approved by NICE so that patients get their benefit? Is the Minister aware that other countries, especially Germany and France, are leading the way with cancer drugs while England is near the bottom of the list? That is not good enough, is it?

Lord Kamall: I thank the noble Baroness. It is important that NICE, MHRA and others hear some of the concerns, and the fact that we are being held to account today shows how important this is. Unfortunately, some existing legislation restricts MHRA’s ability to  share information with partners, including NICE, which would help them to plan their processes more efficiently. NICE, MHRA, NHS England and NHS Improvement are talking about the concerns raised by noble Lords and generally about delays in the process. They are talking about how they can improve access, including through initiatives such as the Innovative Licensing and Access Pathway launched in January 2021, and sharing as much information as they can upfront. Both MHRA and NICE are aware of the concerns and made that clear when I met them recently after their board-to-board meeting.

Baroness Thornton: My Lords, I will follow up on questions that noble Lords have already asked. The ongoing NICE methods and processes review missed the opportunity to propose a new process to mirror accelerated regulatory processes. There are concerns that capacity constraints will limit NICE’s ability to publish decisions as close to marketing authorisation as possible, including for oncology drugs, through the new Project Orbis route, as has been the case with the secondary breast cancer drug, Trodelvy. Have the Government assessed whether the system is fit for purpose in achieving the objective which the noble Lord has articulated: to deliver quick patient access to new, clinically effective treatments? What concrete steps have been taken so far to address any concerns?

Lord Kamall: Both NICE and MHRA are aware of the concerns, particularly regarding the delay between approval and licensing. That is why they are having conversations with NHS England and NHS Improvement to make sure, as far as possible, that they can discuss co-operation to ensure the speedy approval of drugs.

Lord Robathan: My Lords, regarding the efficacy of cancer treatment, so far this year, six friends of mine have died from cancer; all were under 80 and three were younger than me. I know of many more who have terminal cancer, regrettably. I also knew one person who died from coronavirus aged 55. She had leukaemia, or blood cancer, which destroyed her immune system, and she caught the virus while she was being treated in hospital. To put cancer in perspective, how many people under the age of 80 have died this year from cancer and how many people under the age of 80 have died in this terrible pandemic, which has shut down society, damaged our children’s education and mortgaged their future for decades to come?

Lord Kamall: I thank my noble friend for his question. The focus was on fighting Covid and making sure that people were vaccinated as quickly as possible. As noble Lords know, economics is about the allocation of scarce resources and there are always trade-offs. Sometimes there are unintended consequences of focusing on one condition rather than another. I will write to my noble friend with an answer to his specific question.

Baroness Stuart of Edgbaston: My Lords, so far, we have spoken about England. The drugs are licensed for the whole of the United Kingdom and NICE regulates what happens in England. Wales is  aligned to some extent and Northern Ireland much more closely; Scotland applies a different system. Will the Minister undertake to look at whether other parts of the United Kingdom are dealing with this more efficiently? As he does so, will he also take care that NICE is not being used as a back-door way of rationing?

Lord Kamall: The noble Baroness raises an important point, especially given that health is devolved to the devolved Administrations. As much as possible, we work England-wide, but we also ensure that we co-ordinate UK-wide and that Ministers and officials regularly meet with those from the devolved Administrations.

Lord Hannan of Kingsclere: My Lords, some of the territories in the world which have the cheapest, safest and widest choice of medicines do not have their own regulators. Instead, they automatically recognise the decision made by globally acknowledged licensers. Does my noble friend agree that one way of addressing the question of expedition that the noble Lord, Lord Hunt of Kings Heath, and others raised would be for global Britain to work for the consumer as well as the drugs companies and to recognise automatically drugs licensed by the FDA, the European Medicines Agency and other equivalent bodies?

Lord Kamall: I thank my noble friend, who has been an advocate for free trade, for his question. Sometimes in the conversation about recognition, there is a debate between harmonisation and mutual recognition but also unilateral recognition. One of the concerns often raised when looking at unilateral recognition is that negotiators feel that, sadly, they are losing a bargaining chip. The other thing to recognise is that one country’s standard is often another country’s non-tariff barrier. MHRA is the UK regulator and I have been told that it thinks it important that we have our own arrangements in place for the regulation of medicines.

UK Cash Network
 - Question

Lord Holmes of Richmond: To ask Her Majesty’s Government what plans they have (1) to designate the United Kingdom’s cash network as Critical National Infrastructure, and (2) to introduce a Universal Service Obligation for the provision of cash.

Lord Holmes of Richmond: I beg leave to ask the Question standing in my name on the Order Paper and in doing so declare my technology interests as set out in the register.

Lord Agnew of Oulton: My Lords, designation of the United Kingdom’s critical national infrastructure is sensitive and as such is not made public. However, the Government have committed to legislating to protect access to cash and to ensure that the UK’s cash infrastructure is sustainable for the long term. The Government recently concluded a consultation setting  out proposals for new legislation which seeks to ensure that people only need to travel a reasonable distance to pay in or take out cash.

Lord Holmes of Richmond: My Lords, does my noble friend agree that, whether for the financial inclusion of individuals or the overall resilience of the UK economy, until we have high-speed reliable digital connectivity and high levels of universal digital inclusion, cash still matters, and it matters materially?

Lord Agnew of Oulton: I agree with my noble friend; he is completely correct. It is worth pointing out as some reassurance that over 79% of adults over 65 have made a payment using contactless in the last year and 84% of adults over 65 have used online banking, so I think the digital revolution is spreading to all parts of our society.

Lord Berkeley: My Lords, the Minister’s answers seem to indicate that the Government are very keen that we end up as a cashless society, with everything done with cards and so on. Is he aware that Sweden has stopped this move because of fears of a covert attack? In which case, if we were cashless and had a covert attack which disabled everything, we would be a moneyless society.

Lord Agnew of Oulton: The noble Lord makes a good point—though perhaps he meant “cyber” attacks—and it is certainly part of our responsibility to ensure that the banking system is resilient to attacks. We have convened the banking system and ensured that operational resilience is a key part of protecting the UK’s financial system, institutions and customers.

Lord Young of Cookham: My Lords, is there not a levelling-up issue behind my noble friend’s Question, in that areas that are left behind have more people without bank accounts and fewer ATMs? Will this be addressed in the forthcoming levelling up White Paper?

Lord Agnew of Oulton: My noble friend is right that access to cash can be more difficult for those less well off. However, as he will be aware, LINK has committed to protect free-to-use ATMs more than one kilometre away from the next nearest free ATM or post office and free access to cash on high streets. It remains a priority of this Government to ensure that cash is available.

Baroness Kramer: My Lords, I wonder if I can press the Government, because the Bank of England is looking closely at a central bank digital currency. Many have suggested that this will be the substitute for cash in the future, but its characteristics are quite different, in many ways, from cash. Can we have an assurance from the Government that they will keep in place a cash infrastructure running alongside—if they choose it—a digital sterling?

Lord Agnew of Oulton: My Lords, we are certainly looking at a digital system, but I reassure the noble Baroness that cash remains a key part of the ecosystem.

Lord Empey: My Lords, as a former member of the Select Committee on Financial Exclusion, so ably chaired by the noble Baroness, Lady Tyler of Enfield, I first endorse what the noble Lord, Lord Young of Cookham, said about levelling up. Even though the statistics show a reduction in the number of those needing cash, people still become at the mercy of ruthless illegal moneylenders and others, and this is destroying lives. Can the Minister assure the House that he will keep pressure on the banks to ensure that there are effective and accessible services that allow these people access to the financial system, so that they can avoid all this desperation and the criminality that flows from it?

Lord Agnew of Oulton: My Lords, basic bank accounts are one requirement of the banking system; the nine largest account providers are required to provide this to customers, and there are some 7 million basic accounts open with these providers. They are easier to open than ordinary bank accounts, and that facility remains available.

Lord Hunt of Wirral: I first draw attention to my interests as set out in the register, particularly as an independent director of LINK. Does my noble friend the Minister have an indication of when the fundamental review of financial services regulation will be concluded? Given that the pressure on cash infrastructure is now so acute, what news is there of the work the FCA is overseeing with the banks on developing a much-needed plan to protect cash infrastructure?

Lord Agnew of Oulton: My noble friend asks important questions. On access to cash, as I said in earlier answers, the Government are committed to legislating to protect access to cash and ensuring that the UK’s cash infrastructure is sustainable in the long term. In answer to my noble friend’s second question, the Government are undertaking a wider financial services future regulatory review, which aims to build on the strengths of the UK’s existing framework as set out in the Financial Services and Markets Act 2000. An initial consultation exploring these issues and a proposed approach was published by the Treasury in October last year, and we had 120 responses. We will publish a second consultation with detailed proposals shortly.

Lord Tunnicliffe: My Lords, the noble Lord, Lord Holmes of Richmond, is right to keep up the pressure on this important issue. The problem to date has been the lack of ownership, with the Treasury urging action from a variety of regulators and public bodies, none of which has a whip to crack when providers leave town. The recent consultation sought to place overall responsibility with the Financial Conduct Authority. Is this still the Treasury’s preference? If so, when and how will this be enacted?

Lord Agnew of Oulton: My Lords, the Government’s consultation set out proposals for the Financial Conduct Authority to become the lead regulator for oversight of the retail cash system, including having responsibility for monitoring and enforcing new legislation and cash access requirements. In adopting this approach,  the Government intend that the Payment Systems Regulator and the Bank of England continue with their existing functions with regards to cash. Co-ordinated actions by the FCA and PSR on cash as part of the Covid response have shown that joint working between the regulators at both strategic and operational levels is working.

Baroness Tyler of Enfield: My Lords, following on from the questions from the noble Lords, Lord Hunt and Lord Tunnicliffe, will the Government commit to giving the Financial Conduct Authority responsibility to start tracking trends in cash acceptance levels among UK businesses to help understand what action might be required to prevent that problem worsening? Separate from the legislation—it will be great to get a timetable for when it will be introduced—what specific measures will the Government take to ensure that people, particularly those who rely on cash, can continue to use cash to pay for goods and services?

Lord Agnew of Oulton: My Lords, as part of the FCA’s role in monitoring and enforcing cash access, the Government consider that it should be given responsibility for ensuring that access points provide reasonable access. In terms of recent activity, since the passing of the Financial Services Act, retailers now have the ability to offer cashback without purchase—I think it was from 29 June—and we are already seeing some take-up of that. Indeed, PayPoint, which operates terminals in several thousand outlets across the country, has committed to provide that extension to its service.

Baroness McIntosh of Pickering: Will my noble friend give an assurance that there will continue to be access to cash in rural areas? Could he please define what, in his view, is a reasonable distance to travel to pay in or take out cash?

Lord Agnew of Oulton: My Lords, to reassure the noble Baroness, the provision of cash access across the UK remains extensive. As of March this year, 95% of the population were within two kilometres of a free cash withdrawal point.

Immigration Rules: Au Pairs
 - Question

Baroness Hodgson of Abinger: To ask Her Majesty’s Government what plans they have to address the impact on the (1) recruitment, and (2) employment, of au pairs from European Union member states of changes to immigration rules following the United Kingdom’s departure from the EU.

Baroness Williams of Trafford: My Lords, as has been the case since 2008, the UK’s points-based immigration system will not offer a dedicated route for au pairs. Other immigration routes exist for people who may wish to take up these roles, such as the youth mobility scheme,   or YMS. We remain open to negotiating bilateral YMS arrangements with other countries and territories, including the EU or, indeed, nations within it.

Baroness Hodgson of Abinger: My Lords, the au pair scheme was formalised by the Council of Europe in 1969. It is an excellent scheme: it gives hard-working families the benefit of flexible childcare, and au pairs leave the UK with improved English and are great ambassadors, as well as giving business to our English language schools. Brexit has meant that there is no available visa route to bring au pairs to the UK. According to the British Au Pair Agencies Association, Caroline Nokes, the Immigration Minister in 2019, gave assurances that there would be a temporary visa work route for au pairs, but this has not happened. Can my noble friend the Minister inform the House of when we can expect this to occur and will she undertake to expedite this issue?

Baroness Williams of Trafford: My Lords, successive Governments since 2008 have decided that the UK’s immigration system will not offer a dedicated visa route for au pairs, and I do not see that situation changing. I described in my initial Answer the YMS route, on which there are around 20,000 people from participating countries or territories coming to experience life in the UK.

Lord Lilley: My Lords, I welcome the fact that we are moving away from the deplorable British habit of paying British workers too little and not training them enough, and instead relying on cheap labour from abroad. I understand the reasons my noble friend gives for wanting an exception in the case of au pairs, but I counsel the House that it will open us to ridicule if the only exception we are prepared to make is to help us deal with the servant problem.

Baroness Williams of Trafford: I agree with my noble friend. Debates have been had over the last few months and years, but the whole point is to offer competitive wages here for workers from either here or abroad. Au pairs certainly are labour on the cheap.

Lord Foulkes of Cumnock: My Lords, does the Minister agree that, although we have had critical shortages of HGV drivers, fruit-pickers, nurses, doctors and care workers, it takes a shortage of au pairs for some people to realise that Brexit is an unmitigated, self-inflicted disaster? When will the Government acknowledge this and try to find a new, positive relationship with the European Union?

Baroness Williams of Trafford: The noble Lord knows very well that the problems with HGV drivers and poultry workers are to do with easing supply chain pressures and are nothing to do with Brexit.

Baroness Ludford: My Lords, for decades after the Second World War, it was Conservatives who, following Churchill, formed the backbone of the European movement. One of the motivating causes was that of  cultural and educational exchange, whether through the Council of Europe or later the EU. Why on earth can a Conservative Government not now unilaterally extend the youth mobility scheme to EU and EEA countries to include, among others, au pairs?

Baroness Williams of Trafford: My Lords, I have just explained this. The youth mobility scheme is open to the whole world and we are open to having arrangements with any country in the world. We already have arrangements with nine countries, with two more to be added next year.

Lord Moylan: My Lords, I have no view as to whether the Government should take action to address the shortage of au pairs. However, I ask my noble friend to agree that, if any action is taken by the Government as a result of this shortage, there will be no undue discrimination in favour of EU countries as opposed to those in the rest of the world. We have left the European Union, and that means that we stand on an equal relationship and footing with every country in the world. Any scheme that is introduced should not contain the discriminatory element implicit in this Question.

Baroness Williams of Trafford: My noble friend clearly gets it: since we left the EU, we are treating all countries the same.

Baroness Chapman of Darlington: This is not really about au pairs, is it? This is about opportunities for young people. Is it not correct that the Government did not think about opportunities for young people when they did their Brexit deal, just like they did not think about food producers, the cultural industries or even the people of Northern Ireland? Will the Minister commit to speak to her colleague the noble Lord, Lord Frost, to make sure that appropriate changes are made to the Brexit deal which deal with this, alongside the other problems the Government have created by omitting arrangements for young people?

Baroness Williams of Trafford: As I said in answer to a previous question, there are 20,000 young people from participating countries or territories coming here to experience life in the UK. I would not say that that is a scheme that is closing down opportunities for young people.

Lord Jones of Cheltenham: My Lords, when my twin daughters were very small, we engaged an au pair from Sweden who was very helpful and became a lifelong friend. During her time with us, she developed her English language skills and gave us an insight into life in Scandinavia. Do the Government really value this kind of international interaction, particularly with our friends in Europe? If they do, will they just scrap all restrictions on the employment of au pairs?

Baroness Williams of Trafford: Why does the noble Lord restrict this opportunity to Europe? We are opening up opportunity to the whole of the world.

NHS: Fracture Liaison Services
 - Question

Lord Black of Brentwood: To ask Her Majesty’s Government what support, if any, they intend to provide to the National Health Service to ensure full coverage of Fracture Liaison Services throughout England.

Lord Black of Brentwood: I beg leave to ask the Question standing in my name on the Order Paper and note my interest as co-chairman of the APPG on Osteoporosis.

Lord Kamall: I thank my noble friend for raising this issue and for the work he has done as part of the all-party group. I look forward to reading the report it is writing on this important service. The NHS has prioritised the fracture liaison service as a key part of its elective recovery plans, after this was a recommendation from the best musculoskeletal health pathway improvement programme. NHS England is working closely with integrated care systems to support the implementation of this and other services.

Lord Black of Brentwood: I thank my noble friend for that Answer. He will be aware that fracture liaison services are vital for the identification and treatment of osteoporosis. That silent disease, as it is known, causes over half a million broken bones each year—one every minute—and as many deaths, resulting from fractures, as lung cancer and diabetes. The FLS is the world standard for fracture prevention, yet too many suffering from osteoporosis are unable to access the service. Is my noble friend aware that, when the Royal Osteoporosis Society surveyed NHS trusts in England, only 51% confirmed they provided the service and many of those are underfunded? Can he tell us what action the Government will take to reduce such clear health inequalities and make sure that fracture liaison services are available to all?

Lord Kamall: I thank my noble friend for highlighting the importance of this issue. There are MSK leads in local regions who have the ability to focus on what is best for their local region, with the incorporation of key performance indicators related to the FLS within the national clinical audit. NHS England has also convened a group of key clinical opinion leaders to develop an evidence-informed integrated secondary fracture prevention pathway for sharing with integrated care systems. There are many other issues that I could mention, and I would be happy to write to my noble friend.

Lord Brownlow of Shurlock Row: My Lords, I declare my interest as a donor to and patron of the Royal Osteoporosis Society and a member of the osteoporosis APPG. As my noble friend said, fracture liaison services are the world standard for secondary fracture prevention. According to the Royal Osteoporosis Society, for every £1 spent on FLS in the United  Kingdom, the taxpayer can expect to save £3.28. By levelling up FLS provision to cover everyone over the age of 50 in the United Kingdom, we could prevent just under 5,700 fragility fractures every year, saving the taxpayer £65.7 million. Could the Minister confirm that the Government will invest further in prevention as well as cure?

Lord Kamall: I very much agree with my noble friend that the prevention of illness is as important as the cure. In conversations I have had with the NHS and other healthcare professionals, there is a focus on prevention. Some noble Lords may remember the debate we had a couple of weeks ago, focusing on the prevention of obesity rather than treating its symptoms. The NHS is prioritising FLS and similar services when it comes to prevention, understanding that this benefits not only patients but taxpayers.

Baroness Bull: My Lords, I declare my interest as an ambassador for the Royal Osteoporosis Society. Vertebral fractures are the most common osteoporotic fractures, but with 70% of these going undiagnosed, the opportunity for early identification of osteoporosis is missed. Does the Minister support the recommendation of the Royal Osteoporosis Society that all diagnostic imaging services should be required to routinely look for and report on vertebral fractures in any spinal imaging they undertake, whatever its primary purpose? Does he agree that this reporting should be unambiguous and actionable, via the FLS where possible, so that patients are put on the right pathway for osteoporosis assessment and care as soon as possible?

Lord Kamall: The department and the NHS continue to work with interested groups to expand the understanding of the wide-ranging needs of people across the country. One example is NHS England’s Covid-19 MSK—musculoskeletal—stakeholder group, which is advising on the impact that lockdowns have had on the physical and mental health of those with MSK conditions. Collaborating with NHS England were the British Orthopaedic Association, the British Society for Rheumatology, the Chartered Society of Physiotherapy, the Arthritis and Musculoskeletal Alliance, and Versus Arthritis. Self-managed resources for patients are being developed. I will write on the specific question that the noble Baroness asked.

Baroness Walmsley: My Lords, could the Minister say what research is being carried out to establish the extent to which universal provision of fracture liaison services could relieve the pressure on hard-pressed GPs, ambulance services and A&E departments?

Lord Kamall: NHS England and others are well aware of the need to reduce the pressure on GPs and other services that the noble Baroness mentioned. That is why they very much welcome the investment in 100 community diagnostic centres, not only on NHS premises but in places such as football stadiums, shopping centres, and so on, making sure that there is more access to these services and that patients can be seen quicker and more speedily.

Baroness Merron: My Lords, there is no inevitability about osteoporosis and broken bones as the result of getting older, and yet osteoporosis affects 50% of all women, with those going through the menopause and after menopause experiencing it at a higher rate of incidence due to the reduction in oestrogen levels. Does the Minister acknowledge that two-thirds of women are not getting the treatment that they need, and that this was the case even before the pandemic? What steps are the Government taking to improve access by women to HRT and treatment for osteoporosis?

Lord Kamall: The noble Baroness raises an important point. A number of people are still waiting to be seen; NHS England is very much aware of the backlog and wants to address it. As a key part of the elective recovery plans, NHS England is working with a number of local integrated care systems to establish a greater number of clinics, as well as with community diagnostic centres, and is developing business cases. NHS England is also working with experts in the field of musculoskeletal health to improve patient pathways and to find new opportunities that, over time, will improve patient care and access.

Lord Lexden: Do the Government accept the estimate provided by experts that some 90,000 people a year are missing out on the bone-strengthening medication that they need? What is being done to tackle this problem?

Lord Kamall: My noble friend raises an important point. We accept this estimate; we are working hard to remedy it and to provide the healthcare that people need. The NHS has established the Best MSK Health national improvement programme, which is focused on improving the whole pathway for those with MSK conditions. That programme will include identifying and tackling variations in access, outcomes and experiences. I am also encouraged to see that the NHS is keeping FLS as a priority in its recovery plan, which includes plans to deliver more of these services across the country. On top of that, the Office for Health Improvement and Disparities is looking specifically at the issue of disparities, not only for MSK conditions but for others.

Baroness Masham of Ilton: Can the Minister ensure that people living in rural areas who are at risk of osteoporosis will be able to be diagnosed by a DEXA scan? Is he aware that this opportunity has been turned down for the local hospital at Northallerton, despite the wishes of the consultant and the Friends of the hospital who raised the money to buy one? What can be done about that?

Lord Kamall: I am not sure about the specific case that the noble Baroness raises, but I will write to her. However, generally, there is an investment of £2.3 billion to increase the volume of diagnostic activity and to roll out at least 100 community diagnostic centres, to make sure that we are taking diagnosis closer to patients in their communities.

Lord Hunt of Kings Heath: My Lords, I do not understand. The noble Lord and his Ministers are taking powers in the health Bill going through the  Commons at the moment to issue directions to NHS England. So why on earth can he not issue a direction to NHS England to simply say that every integrated care system must have one of these services, given the evidence that noble Lords on his side of the House have given about the benefit of doing so?

Lord Kamall: The Government recognise the importance of FLS, as does the NHS. That is one of the reasons why they are looking to roll out these community diagnostic centres, to make sure that the technology and the scanning is as close to the patients as possible. Just this morning, I had a meeting with one supplier who is talking about a partnership with a number of integrated care systems to make sure that they roll out the systems as close to patients as possible.

Lord Faulkner of Worcester: My Lords, the time allowed for this Question has now elapsed. That concludes Oral Questions for today.

Arrangement of Business
 - Announcement

Lord Ashton of Hyde: My Lords, I thought this would be a convenient point to draw your Lordships’ attention to the arrangements for business tomorrow, Tuesday 9 November. We expect to receive a message from the Commons in respect of the Environment Bill this afternoon. This House will consider the Bill again tomorrow. The deadline for tabling Motions or amendments for inclusion on the Marshalled List is 11 am tomorrow morning. This will enable the House to consider the Bill as the first main business of the day tomorrow. Report of the Professional Qualifications Bill will proceed once the House has concluded its consideration of the Environment Bill.

Finance Committee
 - Membership Motion

The Senior Deputy Speaker: Moved by The Senior Deputy Speaker
That Lord Kennedy of Southwark be appointed a member of the Select Committee, in place of Lord Collins of Highbury.
Motion agreed.

Social Security (Up-rating of Benefits) Bill
 - Third Reading

Motion

The Parliamentary Under-Secretary of State, Foreign, Commonwealth and Development Office and Department for Work and Pensions (Baroness Stedman-Scott): Moved by The Parliamentary Under-Secretary of State, Foreign, Commonwealth and Development Office and Department for Work and Pensions (Baroness Stedman-Scott)
That the Bill do now pass.

Baroness Stedman-Scott: My Lords, as this is a two-clause Bill and the main clause was an amendment, I will use this opportunity to thank all noble Lords for the positive engagement  and feedback they have provided thus far. We have had some truly wide-ranging debates, and I deeply appreciate the House’s passion for and knowledge of social security and pensions. I am enormously grateful to my noble friend Lady Scott, who has supported me at each stage of the Bill’s progress, both on and off the Floor of the House. I extend my thanks to the noble Baronesses, Lady Sherlock, Lady Janke, Lady Altmann and Lady Stroud, and the noble Lords, Lord Sikka and Lord Davies, for their amendments, ensuring thorough scrutiny of the Bill. I extend my thanks to the countless other noble Lords who have provided an abundance of constructive support and knowledge, and I thank all noble Lords for taking part.

Baroness Sherlock: My Lords, I thank the Minister for her remarks and thank all noble Lords who participated in the debate on the Bill. For a short Bill, its impact is quite wide, affecting millions of people. Our debates have raised some crucial issues around approaches to uprating and the government strategy for retirement saving, and especially around the position of pensioners on lower incomes as we enter a season of spiralling prices. Not for the first time, it is possible that our deliberations may have a broader impact in parts of Westminster and Whitehall than perhaps we realise or will ever know—at least until the autobiographies of the future come to be written.
On the matter of memoirs, these proceedings have also been notable for the return to the fray of the former Minister for Welfare Reform, the noble Lord, Lord Freud, whose frank demolition of the Government’s case for social security cuts and policies such as the benefits cap will, I predict, turn out to have a half-life somewhere around that of uranium.
I thank the Minister for her concession on Report, in response to my amendment on pensioner poverty, that an impact assessment should be published. That happened on Friday. I look forward to having the opportunity, if we can, to discuss that with her and her officials in due course. Most importantly, we have amended the Bill to require the Government to find a way to adjust pension uprating and to maintain the earnings link, while making allowance for the pandemic. I urge the Government to take that seriously and to use the time they now have to find a better solution than that offered by the Bill.
Public trust in politics has taken a bit of a hit in recent times. If there were a way of pursuing this objective without dumping a manifesto commitment, we would all want that. In the meantime, I thank the Minister and her officials, colleagues across the House for their thoughtful contributions, and Dan Harris of our staff team for his marvellous support. We send the Bill back to the Commons with our best wishes, hoping that it will embrace it and hold on to it as it is.

Lord Stoneham of Droxford: My Lords, the noble Baroness, Lady Janke, apologises for not being able to be here today. She has asked me to say a few words on behalf of our group. We very much welcome that noble Lords have agreed with the amendment from the noble Baroness, Lady Altmann. We hope that it will enable MPs in the other place to think  again about the need to protect pensioners from the worsening economic circumstances. In the time since the Bill’s passage through the other place, significant changes have taken place, with economic indicators leaving little doubt that pressures will grow in the months ahead. I thank all noble Lords for their contributions. I particularly welcome the cross-party working made possible by the noble Baronesses, Lady Altmann and Lady Sherlock. We have much appreciated the Minister’s helpful approach. We thank her for her openness and willingness to share information on the Bill. We extend sincere thanks and appreciation to the Bill team, who have provided us with expert professional advice at all stages.

Baroness Altmann: My Lords, I also thank my noble friend the Minister and the Bill team for all their work, and for the courtesy they have shown in meeting us many times to listen to the concerns we have expressed. I too am extremely grateful for the work across the House that was encompassed by this Bill. It has shown the House of Lords at its best. This is an issue of significant social importance where this House has shown that it believes that the other place took a decision based, perhaps, on incorrect information and has asked it to reconsider. I am particularly grateful to the noble Baronesses, Lady Sherlock and Lady Janke, my noble friend Lady Wheatcroft and others including the noble Lords, Lord Hain, Lord Davies and Lord Sikka, and the noble Baroness, Lady Drake, for their hard work. As the noble Baroness, Lady Sherlock, has said, I hope the Government will find a way to retain this amendment in the Bill and uprate state pensions by more than the 3.1%, which is clearly inadequate to protect against cost of living increases.

Lord Sikka: My Lords, I echo the words of the previous speakers. I hope that the Government will act on the recommendations of this House. I am also grateful to the Minister for the impact analysis, which I received on Friday night. I should be grateful if in future we could have a better quality of data. For example, it refers to weekly mean benefits, which do not tell us much about the societal impact or distribution. It would be very helpful, for example, to know the median figure and to have some further analysis in the appropriate financial brackets. Table 4 refers to the number of people eligible, pre-2016, for the new state pension but does not tell us how many actually receive the full amount. Once again, could I please request a fuller analysis, which would not only provide greater transparency but enable us to call the Government to account? It could be in the form of a statement of the number of individuals receiving, for example, a pension of less than £100 per week, those receiving between £100 and £120, and so on in other brackets. A better quality of analysis would enrich the debate.

Baroness Stedman-Scott: My Lords, I am grateful for the remarks made by all noble Lords today. Our discussions have been thoughtful and powerful. Above all, they have demonstrated the commitment across your Lordships’ House to protect the income of pensioners and to bear down on pensioner poverty. The Bill now goes to the other place to consider the  amendments put forward by this House. I look forward to our consideration of its reasons on the Bill’s return. As always, I note the challenge of the noble Baroness, Lady Sherlock. I will take the observations of the noble Lord, Lord Sikka, on the impact assessment back to the department, as I have done with all the other points he has raised. Finally, I thank all noble Lords who have spoken today and at earlier stages. I also thank the officials who have supported me in our discussions.
Bill passed and returned to the Commons with amendments.

Police, Crime, Sentencing and Courts Bill
 - Committee (6th Day)

Relevant documents: 1st, 2nd, 4th and 6th Reports from the Joint Committee on Human Rights, 6th Report from the Delegated Powers Committee, 7th Report from the Constitution Committee

  
Clause 63: Amendments to existing powers

Amendment 150

Lord Garnier: Moved by Lord Garnier
150: Clause 63, page 62, line 22, at end insert—“(11A) After section 68(3) insert—“(3A) In proceedings for an offence under this section it is a defence for the accused to show—(a) that they were not trespassing on the land, or(b) that the activity in response to which the aggravated trespass was committed was unlawful activity.””

Lord Garnier: My Lords, I am grateful to my noble friend Lord Shrewsbury and to the noble Baroness, Lady Bakewell of Hardington Mandeville, for signing my Amendment 150 to Clause 63. Unfortunately, he is unable to be here today because of an unforeseen medical appointment, but has read my speech in draft and has told me that he agrees with it. Whether it comes out as I wrote it is entirely a different matter. In any event, it comes with the usual caveat—the mistakes are mine; the support is his, and I am grateful for it.
The amendment is simple and straightforward. There is no reason in principle or justice why it should not be accepted. That said, I am not so naive as to think that, just because I am arguing for it, it is perfectly drafted or that the Government or the majority of the Committee will agree with me. I will not press it to a Division, but I shall listen carefully to what my noble friend the Minister says in response before deciding whether and how to take the matter forward beyond Committee.
Clause 63 of the Bill amends Section 68 of the Criminal Justice and Public Order Act 1994. I have nothing to say about the policy behind Clause 63 but, since it is there, as I indicated at Second Reading, it gives me an opportunity to right a wrong contained in Section 68 of the 1994 Act. That section defines the offence of aggravated trespass. In so far as it is relevant to my amendment, it provides, first, that:
“A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect—
(a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,
(b) of obstructing that activity, or
(c) of disrupting that activity.”
Section 68(2) says that:
“Activity on any occasion on the part of a person or persons on land is ‘lawful’ for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an offence or trespassing on the land.”
As I understand that section, a trespasser who, for example, enters on to another’s land intending to intimidate that person so as to deter, obstruct or disrupt him from doing something lawful, such as a farming activity like cutting hay, is guilty of an offence. Staying with the example of farming, where aggravated trespass becomes more complicated and, I suggest, unfair to the owner or occupier of the land carrying out his farming activities, and unnecessarily complicated for the police or prosecuting authorities, is the way in which the burden of proof in relation to the trespasser’s defence is on the victim of the intimidating trespasser or the prosecutor.
Let us assume that, rather than cutting hay, the farmer is planting genetically modified wheat. Whether, as a matter of public policy and within the wider environmental debate, the law of this country should permit the planting, growing and harvesting of genetically modified crops for human consumption at all is a controversial question. Where the growing of GM crops is permitted only on specified land with safeguards to prevent cross-contamination of other crops on neighbouring land, it is also controversial.
Indoor pig farming, keeping large flocks of laying hens indoors and making arms for the military—both ours and other countries’—are controversial subjects as well, but the trespasser who enters unlawfully on to the land of the GM crop farmer, the indoor pig farmer or the manufacturer of bombs and missiles for use by our Armed Forces on operations abroad intending, through intimidation, to stop or interfere with their activities and who claims he was doing so to stop something unlawful does not have to prove that he was stopping an illegal activity. The trespasser merely has to assert that the activity he is deterring, obstructing or disrupting is illegal. The prosecution then has to take on the burden of satisfying the court that the activity was lawful.
It is plain and obvious that, in some cases, the trespasser asserts that the activity he is disrupting is unlawful, when he really means that he disapproves of it, that it ought to be against the law and that it should be stopped. He believes that growing GM crops should be banned, that keeping animals indoors to produce meat for human consumption is immoral or that making bombs for the Royal Air Force to use in the Iraq war is wrong, both because the use of military force is unacceptable and because the war itself was illegal. These are entirely legitimate opinions. It is important that we maintain, in this country, rigorous laws to  protect free speech, the freedom to hold opinions that others do not share, and the freedom to protest and of assembly and association.
In short, some of the things the Bill seeks to curtail should not be curtailed, and should not, in any event, be constrained by vague and subjective adjectives in a statute or at the discretion of a government Minister. But if the trespasser is intent on interfering with the farmer’s or anyone else’s work and livelihood, he should not simply have to assert that that work is unlawful and leave it to the prosecution to prove that it is lawful; he should take on the burden of proving his positive case.
People intending to trespass should, before entering on to the land, be sufficiently clear in their own minds that the activity that they want to stop or disrupt is not just one of which they disapprove but is also presently unlawful. Unquestionably, if the user of the land was known to be carrying out an unlawful activity in breach of a regulation or law, the relevant authorities should step in and stop it, but the police find it difficult to anticipate an aggravated trespass designed to disrupt a lawful but controversial activity or whether it will later be asserted that the trespass was carried out to prevent a possible future war crime or environmental mishap. Post-event action by the police, although necessary, does not prevent the disruption and consequential economic damage.
If the police or the Environment Agency, for example, were provided with evidence at or before a trespass that the activity on the land was unlawful, they could go in and stop it themselves, but they should not be asked to guess whether a group of demonstrators against arms manufacturing or GM crops will later assert that they were preventing war crimes or breaches of environmental law, simply because they were chanting slogans and holding up anti-war or anti-GM crop banners. It cannot be good enough to argue that an offence might be committed at some point; what matters is what was happening when the activity was being disrupted.
It may be said that placing the burden on the trespasser as a defendant to a charge of aggravated trespass is contrary to the principle that it is for the prosecution to prove its case. That is generally but not always true, and there are several examples of statutory offences or regulatory breaches that impose some burden on the defendant to prove, to the civil standard, a positive defence.
Noble Lords will be happy to hear that I will not trouble them with a detailed discussion of legal, persuasive and evidential burdens, not least because the noble and learned Lord, Lord Hope, is in his place and he has forgotten more about this aspect of the law than I ever knew. However, in essence, I suggest that my amendment offends neither English law nor Article 6(2) of the European Convention on Human Rights. This change in the law of aggravated trespass is justified, necessary and proportionate.
I make no extravagant claims for my drafting, and can see that proposed new subsection (3A)(a) in my amendment could be construed as placing the burden on the defendant to disprove the trespass, which the prosecution already, and rightly, has to prove. But concentrate on proposed new subsection (3A)(b); the prosecution would still have to prove the essential  elements of the offence—namely, the defendant’s trespass and intention to intimidate so as to deter, obstruct or disrupt another’s ostensibly lawful activity, before the burden of proving that the activity was not lawful shifts to the defendant. The burden on the prosecution is not a mere formality, but would there be difficulties facing the defendant in satisfying the legal burden placed on him? For example, are the facts within the knowledge of the defendant? Presumably they are, otherwise he would not be there seeking to disrupt the activity in question.
In considering whether the shift in the burden is proportionate, does the public interest to protect the legitimate economic activity of the farmer or commercial employer not weigh more heavily in the balance than the individual’s right to express disapproval of their activities by interfering with them—something he can do without intimidating the farmer and stopping him working? Does the greater threat to society not lie in people taking the law into their own hands and turning what is a private view, if sincerely held and widely shared with others, into authority to stop others from earning a living? If Parliament disapproves of GM crops, indoor pig farming or the manufacture of weapons, it can legislate accordingly. Each case will be fact-specific, but this amendment does not present insurmountable problems for the defendant.
I accept that aggravated trespass is, under the 1994 Act, an offence that carries with it a limited fine and a maximum sentence of three months’ custody. It is, though, a less serious offence than some drugs and knife offences, which place the burden of proving lawful possession of the knife or drugs on the defendant, and is more serious than a breach of some administrative regulation. But the amendment will not, I suggest, lead to disproportionate injury to the trespasser’s reputation or rights, certainly not when compared with the economic damage that could flow from the turning of disapproval into permission to destroy.
This amendment would give the police greater clarity about whether an offence of aggravated trespass had been or was about to be committed and assist those who are about to be or already have been subjected to the commercially damaging consequences of aggravated trespass. It does not outlaw protest; it does not make the holding of opinions about controversial matters of public debate against the law. It does not prevent anyone campaigning vigorously and noisily in favour of their own cause or against those to which they object. But, if a person wants to come on to the land of another to stop him doing what he objects to, he must be prepared to establish with credible evidence, and not just assert when prosecuted for aggravated trespass, that what he was deterring, obstructing or disrupting was against the law. If he is not prepared to show that the activity was unlawful, he should campaign to change the law through Parliament and demonstrate in the public space.

Viscount Hailsham: Can my noble and learned friend clarify the standard of proof? I assume that it is the civil standard for the accused person, namely the balance of probabilities. Would it be wise to include that in the Bill?

Lord Garnier: Many things could be added to the Bill and many could be taken away but the general thrust of the law, as my noble friend well understands, being a barrister of considerable experience, is that where a burden is placed upon a defendant in a criminal matter, it is set to the civil standard of proof.

Baroness Brinton: My Lords, I am grateful to the noble and learned Lord, Lord Garnier, for explaining his amendment in such helpful detail. However, my focus is on suggesting that Clause 63 should not stand part of the Bill. The principal reason—much of which we debated the other day, so I will not go into it in great detail—is the effect on the Gypsy, Roma and Traveller community. It is particularly about the use of the vague and expansive provisions of significant “disruption” and “distress”. “Damage” may be easier to define, but there are perhaps some issues about that as well.
Clearly, a range of provisions is already on the statute book which criminalise committing criminal damage. Section 1 of the Criminal Damage Act 1971 allows courts to grant injunctions against people engaging in antisocial behaviour—I could go on. The real concern is that this is clearly targeted at the Gypsy and Traveller community. To repeat a point that I made the other day, the definition of “significant” is not clear in the Bill. The Supreme Court recently characterised “significant” as follows:
“like the skin of a chameleon, the adjective takes a different colour so as to suit a different context.”
However, “disruption” itself has also been controversial in the context of public order legislation and is hugely open to interpretation. Part 4 directs authorities to focus exclusively on disruption caused by roadside camps, rather than inviting this to be balanced against the relative disruption caused by evicting Gypsy and Traveller families, to ensure that the response is proportionate.
“Distress” is also a broad and highly subjective category. The National Police Chiefs’ Council asked, in its evidence to the Joint Committee on Human Rights,
“whose distress? Is it the landowner’s? Is it a perception?”
This nebulous term may, in this context, also be informed by stereotypes and prejudices against Gypsy, Roma and Traveller communities. We heard noble Lords last week making assumptions about the distress that the presence of camps alone may cause—of having an encampment nearby—and that this was also the source of crimes. Most noble Lords who said this also said that they could not prove it, but certainly among the community there is considerable distress already.
As I said, there are existing powers to address this. Section 61 of the Criminal Justice and Public Order Act 1994 gives the police the power to remove people from land where the landowner or occupier takes reasonable steps, and Section 62A allows the police to direct trespassers to remove themselves and their vehicles and property from land where a suitable pitch or relevant caravan site is available within the same local area. This is particularly important in terms of the data that we heard about the other day—that there are fewer authorised encampments available. There are more unofficial ones, but it is a real problem for people travelling from one area to another and intending to  carry out their lawful business if they cannot find somewhere to go. The difficulty with Clause 63 is that it heaps further problems upon them but uses terms which are not well defined and are utterly nebulous, and which put this community at further risk of having their way of life criminalised.

Baroness Chakrabarti: My Lords, there is so much to get through. First, I disagree with the noble and learned Lord, Lord Garnier; secondly, I agree with the noble Baroness, Lady Brinton, about the clause not standing part.
The noble and learned Lord, Lord Garnier, has partly pre-empted my concern regarding his Amendment 150. Some of us in this Committee and more generally in your Lordships’ House have an allergy to reverse burdens in the criminal law because they generally go against the golden thread of English justice: that it is for the prosecution to prove its case beyond reasonable doubt and not for defendants to prove their innocence. That is a general principle which some of us hold dear. The noble and learned Lord, Lord Garnier, is quite right that over many years that principle has been eroded.
He referred to a number of regulatory offences, which I take to be offences in a confined area of privilege. Regulatory offences are appropriate for activities that might even be licensed, such as driving a vehicle or practising medicine. Regulatory offences are not the right analogy to make with just going about your life, including as a citizen who seeks to protest against issues such as GM foods or climate catastrophe. Therefore, his analogy seems quite wrongheaded. From a human rights perspective, he is aggravating the pre-existing damage of the problematic offence of aggravated trespass.
Trespass and nuisance ought generally to be a civil matter. Trespass is usually dealt with and resolved between reasonable citizens without recourse to law. I believe in civil legal aid if necessary, even though it has been all but obliterated in this country, but neighbour disputes generally ought to be a matter between me and my neighbour, not a matter for the criminal law, unless what my neighbour is doing to me crosses a line that offends all in society. I have a general problem with criminalising the civil law, but worse than that, in the context of aggravated trespass—aggravated by the intervention of the noble and learned Lord, Lord Garnier—certain types of trespass are singled out for criminal treatment, are they not? It is not the trespass of my neighbour who is polluting my land or building on my land, cutting over the margins of the boundary for reasons of profit or greed. It is the trespass of my neighbour who comes on to my land to protest and obstruct—for example, an environmental protestor—because in doing damage to my land I am damaging the environment. Therefore, with respect, the noble and learned Lord, Lord Garnier, is once more prosecuting a culture war in which people he may or may not disagree with are being treated worse in relation to their freedom of expression or, potentially, their property rights, than those who choose to pollute the land, for example. In my view, that is a mistake.
Finally on Amendment 150—again, to be fair, this has been pre-empted by the noble and learned Lord—subsection (a), on the reverse burden defence, suggests  that in the offence of aggravated trespass, it is for the defendant to prove that they were not trespassing. That is astonishing: it is like saying that in my defence for assault, I must demonstrate to the civil standard that it was not me who assaulted my noble friend—who was sitting there quite innocently until I metaphorically assaulted him.
That is really quite rich indeed, and shows the underlying thinking here: some people, whose opinions are clearly not considered worthy by some Members of this Committee, are to be guilty until proven innocent, and they seem, in this context, to be demonstrators. In the broader context, in this Part of the Bill, the guilty ones are of course Travellers—as a job lot. This was put so well by the noble Baroness, Lady Brinton, and I will not repeat her reasons, save to say that there is something so inherently unattractive about discriminating against a particular group. We have seen it in many societies, including in our own over so many years. I thought we were in a better place than this.
If people are committing burglaries, let them be prosecuted for burglary. If people are perpetrating nuisances, let them be dealt with like anyone else; there are burglaries in urban and rural areas and there are nuisances everywhere. Let everyone be dealt with equally. Please do not single out one of the most vulnerable minorities, in size, economic power and everything else; do not single out a particular community for less favourable, targeted and demonising treatment. That is essentially why I do not think that Clause 63 should stand part of the Bill.

Viscount Hailsham: My Lords, may I just intervene very briefly? I agree with the noble Baroness when she says that, in general, trespass should be a civil remedy. I am absolutely clear that she is right about that, but it is important to keep in mind that securing a civil remedy is not a rapid process: it really takes quite a long time to get the required order from a court. I represented a rural constituency for more than 30 years, and I know that the kind of trespass to which my noble and learned friend is addressing his amendment, which is encompassed in Clause 63, causes an immense amount of distress to the rural community. There is a very special reason to abrogate the general rule, which does of course make the civil remedy the appropriate one for trespass. I commend this provision to the Committee, subject to the amendment, on which my noble and learned friend is entirely right.

Baroness Bakewell of Hardington Mandeville: My Lords, I apologise to the Minister that I had to leave before the end of the debate on Wednesday due to the fear that I would not be able to get home.
I congratulate the noble and learned Lord, Lord Garnier, on this amendment, to which I have added my name. The noble and learned Lord set out his case very clearly: aggravated trespass interfering with farming activities should not be tolerated. Cutting hay versus planting GMO are some of the examples he gave. I am personally against GMO crops, but I would not support trespassers attempting to prevent this happening. There are other avenues for expressing views about the activity taking place. The freedom to express a view should not take the form of an illegal activity or aggravated trespass.
The noble and learned Lord, Lord Garnier, gives very powerful arguments, especially in relation to war crimes. There are others in this Chamber this afternoon far more knowledgeable on these legal aspects than me, including the noble Baroness, Lady Chakrabarti. I listened very carefully to the speech given on Wednesday evening by the noble and learned Lord, Lord Garnier, and have sympathy for the scenario he painted. It is right that the plight of landowners and farmers should be considered as part of the issues surrounding Part 4 of the Police, Crime, Sentencing and Courts Bill.
I also support my noble friend Lady Brinton in her comments on whether Clause 63 should stand part of the Bill. For a great number of years, Gypsy, Roma and Travellers have been stopping in what they consider to be their traditional resting places. They have done this often with the consent of the relevant landowner or farmer, and there has been little, if any, aggravation with local communities. They have sometimes stopped on common land, again with little impact. Over the years, landowners have changed, farmers have retired, and new tenants have come in. Attitudes have changed and what was once tolerated is no longer acceptable.
With no provision for smaller family groups in their habitual stopping places, encampments have sprung up in some unsuitable places, where farmers fear their stock and property may be at risk. Sometimes gates have been left open and stock escaped, to be rounded up later. Both these examples, and the more serious one that the noble and learned Lord, Lord Garnier, spoke about, are dealt with in this Part of the Bill. All this is inconvenient and there will often be rubbish to clear up after the Travellers have left. This is an inconvenience to the owner or tenant of the land, but is it really to be classified as a criminal offence?
If local authorities were to fulfil their obligations to provide sites for the Travelling community, both permanent and transit, the police, landowners and farmers would be able to direct the Travellers to these sites. Providing housing and accommodation is a legal requirement of local authorities, as is to plan for future numbers. It therefore follows that planning for Gypsy, Traveller and Roma sites should be part of this. The Minister, the noble Lord, Lord Greenhalgh, has reiterated several times that the Government are encouraging local authorities to do this. Just what does he mean by “encouraging”? It is a bit like the interpretation of “significant” in terms of causing nuisance and distress. Just how persistent are the Government in their encouraging?
Trespass has to be proved, and, certainly, aggravated trespass has to be proved to be an unlawful activity, but is it for the perpetrator to prove that they have done aggravated trespass? Either they were not trespassing on the land or they were committing aggravated trespass. Why has that got to be proved by the perpetrator? If the aggravated trespass has occurred, it is right that this should be dealt with properly. However, it is important that the causes relating to a classification of aggravated trespass have to be of a very serious nature and not just idiotic phrases such as “fear of walking close to an encampment” or “smoke from bonfires”.
As we debated during the Environment Bill, fly-tipping is a significant scourge for the landowner and farmer to have to clear up. For this to be a criminal offence against the Travelling community, it has to be “excessive”. It is often the case that the Travelling community will be blamed for crimes that have been committed without any evidence. On Wednesday, when a noble Lord said that he believed that damage and theft by Gypsies and Travellers had occurred, no evidence was provided to support this allegation. We were left to assume that there was a site for Travellers on the doorstep. Similarly, aggravated trespass is serious and must be proved in order for eviction to take place.
On Wednesday, the Travelling community were classed as being illiterate, innumerate, and unwilling to engage in economic activity. This is not the case. The Travelling community do wish their children to receive an education, but in order for this to happen, they need sites on which to reside so that their children can be admitted to school and learn to read, write and have numeracy skills. I have been on a Gypsy site and talked to the elders about the provision of sites. When one elderly Gypsy was required to read a document, he asked his son to do it for him, claiming that his eyesight was poor. I suspect he felt ashamed that he could not read but, like others in all communities, he sought to hide the fact. Lack of literacy is not confined to the Travelling community.
In her response on Wednesday evening, the Minister quoted the Conservative manifesto in relation to making intentional trespass a criminal offence. There will be a great deal in any Government’s manifesto that, for one reason or another, does not make it on to the statute. That same manifesto made a commitment to introduce an animal sentience Bill. That Bill has been duly introduced and had its Committee stage but, like this Bill and Part 4 before us today, it was very poorly drafted. The animal sentience Bill received a very rough passage during Committee, the majority of the criticism coming from the Government’s own Benches. There is no sign of it ever reaching Report stage and I suspect it will be quietly shelved. Hopefully, this section of the Police, Crime, Sentencing and Courts Bill will also be either radically altered or shelved.
Arguments against the provision of sites are that it will attract Gypsies and Travellers into the area where the site exists and that the local authority will be overwhelmed. This is nonsense. On Wednesday, we heard that 694 Gypsies and Roma are actually travelling, requiring transit pitches. This is a problem that could be solved by enforcing local authorities’ obligations to provide for this section of the community. Aggravated trespass is not a solution for anything.
I am appalled at this legislation, which deliberately seeks to extinguish the culture of those who choose not to live in bricks and mortar. We are all aware at this time of the Black Lives Matter campaign and the Black History Project. It is time that those who belong to the very ancient tradition of a nomadic existence, living in caravans and moving from place to place, are treated with humanity, and that their culture is recognised.

Baroness Whitaker: My Lords, I wonder whether the interesting amendment from the noble and learned Lord, Lord Garnier, might not have some unintended consequences that I, personally, would find very welcome. What if the “unlawful activity” included acts contrary to the Human Rights Act and the Equality Act? What if the landlord was trying to turf out Gypsies and Travellers who had no other home to go to? I believe that he will no doubt have an answer to that question.
More generally, on Clause 63—and I agree wholeheartedly with what the noble Baroness, Lady Bakewell of Hardington Mandeville, said—the openness of the terms, so eloquently laid out by the noble Baroness, Lady Brinton, amount to a tremendous allowance for prejudice. We should be in no doubt that this is very common. The hate crime reporting organisation, GATE Herts, funded by the then MHCLG, has ample evidence of explicitly Nazi sentiments being used whenever a Traveller or Gypsy community wanted to move on to a site. Stereotyping is the norm in these records. We heard examples in your Lordships’ House last week of whole communities being tarred by one incident. It is the same as somebody saying that white people should be barred from walking on the street at night because of a few incidents of night-time vandalism; it is that kind of remark, and it is prejudice. If such a remark urges violent action—the removal of Gypsies and Travellers—surely it is illegal.
Following the Minister’s remarks last Wednesday on police guidance in this kind of situation, she expressed some surprise at the use of the term “gold-plated”. Is “gold-plated” not a dog-whistle call to opponents of human rights? Most of us are proud of the Human Rights Act 1998, and how it reinforced our position as a leader in establishing a human rights culture after the Second World War. Be that as it may, the Human Rights Act, and behind it the European Convention on Human Rights, is our law—either one complies with the law or not. Gold-plating of human rights is not a term understood in law, and its implications, in this context, are to diminish any putative offence against the Human Rights Act. I think that Clause 63 is not helpful and should go.

Lord Paddick: My Lords, Clause 63 amends Section 61 of the Criminal Justice and Public Order Act 1994. Section 61 addresses the situation that the noble and learned Lord, Lord Garnier, alluded to on Wednesday—at Hansard col. 1313—when he told us that, 25 years ago, as a Member of Parliament, he was rung by a very distressed farmer in his constituency, whose land was being trespassed on. I make that 1996, but perhaps it was before the 1994 Act was effective.
As my noble friend Lady Brinton has said, Section 61 of the 1994 Act provides a power to remove trespassers on land. I will quote subsection (1):
“If the senior police officer present at the scene reasonably believes that two or more persons are trespassing on land and are present there with the common purpose of residing there for any period, that reasonable steps have been taken by or on behalf of the occupier to ask them to leave and … that any of those persons has caused damage to the land or to property on the land or used threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his, or …that those persons have between them six or more vehicles  on the land, he may direct those persons, or any of them, to leave the land and to remove any vehicles or other property they have with them on the land.”
Subsection (4) states:
“If a person knowing that a direction under subsection (1) … has been given which applies to him … fails to leave the land as soon as reasonably practicable, or … having left again enters the land as a trespasser within the period of three months beginning with the day on which the direction was given, he commits an offence and is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.”
That is the law now, unamended by this Bill.
As many noble Lords said on Wednesday, what is the problem that Part 4 is trying to solve, when there are clearly adequate powers already in existence? Clause 63 simply brings Section 61 of the 1994 Act into line with the rest of Part 4 of the Bill. For the reasons so thoroughly and persuasively argued on Wednesday, this clause, like the rest of Part 4, should not stand part of the Bill.
Section 68 of the 1994 Act, as amended by the Anti-social Behaviour Act 2003, is the offence of aggravated trespass, where
“A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect … of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity … of obstructing that activity, or … of disrupting that activity.”
I am getting the sense of hunt saboteurs, HS2 protestors or, perhaps, those protesting against genetically modified crops, rather than Gypsy, Roma and Travellers. Section 68 appears to me to refer to deliberate interference with lawful activity by means of trespass, rather than coincidental interference; for example, ploughing a field that travellers are trespassing on. Unlike the noble and learned Lord, Lord Garnier, I am not a lawyer, but perhaps the Minister can clarify the difference between Section 68 and what we have been talking about up until now.
As far as Amendment 150 is concerned, as the noble and learned Lord, Lord Garnier, explained, it attempts to correct an error in existing legislation. I agree with the noble and learned Lord that the activity being disrupted should be and needs to be unlawful, rather than the trespasser simply asserting that he believes that it should not be happening. I am not sure that the accused should have to prove that they were not trespassing. As the noble Baroness, Lady Chakrabarti, has said, that seems to be going perhaps a bit too far. We support the amendment in principle, in as far as the activity on the land that is being disrupted needs to be unlawful, rather than just being asserted as being unlawful.
As we leave this part of the Bill, I want to again acknowledge the long and tireless campaign by the noble Baroness, Lady Whitaker, to defend Gypsy, Roma and Traveller communities. I fear that, at Report, we may need to adopt a different approach than simply removing all the clauses in Part 4 from the Bill, in the light of what the Minister said on Wednesday, at Hansard col. 1330, when she quoted from the Conservative Party manifesto:
“We will give the police new powers to arrest and seize the property and vehicles of trespassers who set up unauthorised encampments, in order to protect our communities. We will make intentional trespass a criminal offence.”
That is very interesting wording. New powers do not necessarily mean more draconian powers. I respectfully suggest that on Report this House should bring forward new powers that provide the necessary protections for all our communities, including Gypsy, Roma and Traveller communities. For example—I quote from the manifesto—it could be argued that making
“intentional trespass a criminal offence”
entirely supports Amendment 135 in the name of the noble Lord, Lord Rosser, providing that, where Travellers have no suitable legal pitch on a relevant caravan site situated in the local authority’s area, the trespass should not be regarded as intentional.
It is absolutely right that we, and many others in this Committee, express our outright opposition to Part 4 as drafted but, when we return to these issues on Report, it will be with more sophisticated amendments to take account of the wording in the Conservative Party manifesto—and the convention of not blocking, at least not entirely, commitments made by the governing party in their manifesto—that protect all communities, including Gypsy, Roma and Traveller communities.

Lord Rosser: My Lords, I will be relatively brief. We had a lengthy debate on the previous day in Committee about Part 4 on unauthorised encampments, and expressed our strong concerns about what is proposed in Part 4. I will just reiterate a couple of points. Certainly, our understanding is that the police seem to think the existing law adequate; indeed, so do local government officers who have direct involvement with the Gypsy, Traveller and Roma community.
The noble and learned Lord, Lord Garnier, put forward Amendment 150 on the basis that it is putting right a wrong. The obvious concern is that, in so doing, it creates new wrongs or new unfairness, not least in relation to the Gypsy, Traveller and Roma community. The noble Lord, Lord Paddick, probably quite rightly said that much of the debate might suggest that this amendment was aimed at others, perhaps those involved in protests over GM crops or HS2. Certainly, it involves a change as far as the onus of proof of the accused is concerned. The noble and learned Lord said that he is not going to press the amendment to a vote in Committee. I hope I am not misrepresenting what he said, but I think he said he would wait for the Minister’s response before deciding how and if to progress the matter further. We have our concerns about Amendment 150 and what exactly it might mean, but at this stage we stand in the same position as him: we will wait to hear what the Minister says on behalf of the Government in response to Amendment 150. At the moment we have fairly strong reservations about its implications, but we will listen to what the Government have to say.

Baroness Williams of Trafford: My Lords, I thank all noble Lords who have spoken in this debate. I particularly thank  the noble Baroness, Lady Bakewell of Hardington Mandeville, for her apologies, which in fact I got the other night. It was very courteous of her to give them.
Before I turn to whether Clause 63 should stand part of the Bill, let me deal with Amendment 150 in the name of my noble and learned friend Lord Garnier, which relates to the offence of aggravated trespass, as he outlined. The effect of this amendment would be to introduce a statutory defence to the offence at Section 68 of the Criminal Justice and Public Order Act 1994, as he explained. It would require the defendant to show that they were not trespassing, or that the activity which they intended by their trespass to obstruct or disrupt or cause intimidation in respect of was unlawful.
To introduce a defence which seeks to reverse the burden of proof—that is, the onus of proving an element of the case—to the defence is a serious step. Such a provision would be an exception to the general rule that the prosecution bears the burden of proving all the elements of the case. Some examples of reverse burdens include, for example, where a defendant wishes to plead that they are not guilty of murder by reason of diminished responsibility or where, in relation to a charge of carrying certain offensive weapons, the defendant has a defence if they can show that they had lawful authority or a good reason to carry that weapon. However, the prosecution still has to prove fundamental elements of the offence and that would be the case here too, even if this amendment passed—that is, the prosecution would still have to prove that the activity was lawful, that there was a trespass by the accused and that the accused sought to intimidate, obstruct or disrupt such lawful activity. They would have to do this to the criminal standard of beyond reasonable doubt. Under this amendment, in order to make out their defence, the accused would have to prove on a balance of probabilities that the activity was unlawful or that they were not trespassing. Therefore, this amendment does not necessarily make it easier to prove an offence of aggravated trespass and risks complicating the law by adding additional burdens to disprove the prosecution’s case.
The Government recognise the concern that trespass can cause and the importance of the law being effective. That is why we are introducing a number of measures to curb the effects of trespass on landowners. We are already broadening the scope of Section 61 of the 1994 Act as part of key measures used to tackle unauthorised encampments. Furthermore, the Government are introducing measures that will help to balance our fundamental rights to freedom of expression with the need to ensure that the law on public order is fit to bring those who block or seek to disrupt our critical infrastructure to justice. We will come to these measures in due course. We therefore do not think it necessary to amend the law in this way. We are introducing a number of measures in the Bill that will protect people from trespass which seeks to disturb, intimidate or obstruct lawful activity.
Clause 63 amends Section 61 of the 1994 Act to broaden the types of harm that can trigger the police power to direct trespassers residing on, or intending to reside on land, to leave the land and remove their  property. Currently, the power in Section 61 is exercisable where any of the trespassers has caused damage to the land or to property on the land or used threatening, abusive or insulting words or behaviour towards the occupier, a member of their family or an employee or agent of the occupier. Under Section 61, as amended by this clause, the relevant harms now consist of damage, disruption or distress, including environmental damage such as excessive noise and litter. Unlike the new offence provided for in Clause 62, these harms do not need to be significant for police to be able to direct trespassers away in the first instance. The broadening of harms will make it easier for police to direct trespassers away where encampments are causing problems for landowners, communities or businesses.
We have also increased the period in which trespassers directed away from the land must not return from three months to 12 months. This is designed to strengthen enforcement powers, acting as a greater deterrent in the first place, and more proportionately to protect the rights of landowners and local communities. We are also enabling police to direct trespassers away from land that forms part of a highway. This ensures that directions can be given to trespassers on roads.
These amendments to the 1994 Act are vital to tackle unauthorised encampments and ensure a balance between settled communities, who do not want their local community to be damaged, and Travellers, where the majority want to live their traditional and nomadic way of life and do not want the Traveller image damaged by criminals.
The measures in Clause 63 have clear support from local authorities and police organisations; 94% of people who responded on behalf of local authorities to the 2019 consultation, and 86% of those who responded on behalf of police organisations, supported one or more of the Government’s proposed amendments to the 1994 Act to extend the powers of the police to direct trespassers to leave land.
I gave an example of how I did not think the legislation was discriminatory towards the GRT community. I have had an opportunity to do a bit more work on this issue over the weekend and I have examples from the last 18 months or so from Cornwall, the National Trust, Carmarthenshire, East Lothian, Snowdonia and the Brecon Beacons. This is not limited to the GRT community; it is about where the type of disruption and destruction that I have outlined takes place.
On the gold-plating that the noble Baroness, Lady Whitaker, talked about, I said the other day that I would write about that aspect because what was said then was new to me.
I hope that, in the light of my explanation, my noble and learned friend will be content to withdraw his amendment and that the Committee will support Clause 63 standing part of the Bill.

Lord Paddick: I am grateful to the Minister for that explanation. With regard to the other examples that she has found over the weekend, showing that the law is not targeted at Gypsy, Roma and Traveller people, is it not the case that under the Equalities Act the law should not disproportionately impact on any  particular community, not that they should not be the sole focus? Therefore, if the changes as drafted would disproportionately impact on the Gypsy, Roma and Traveller communities, would that still not be contrary to the Equalities Act?

Baroness Williams of Trafford: My Lords, I have said all along, and the proponents of the amendments that we have discussed have underlined, that the absolute majority of the Gypsy, Roma and Traveller community are law-abiding people, so this is not something that disproportionately impacts on them. It is about people who cause destruction to other people’s land and property.

Lord Garnier: My Lords, I am grateful to all those who have spoken in this debate. I am particularly grateful to the noble Lords, Lord Paddick and Lord Rosser, for their qualified support for the principle behind my Amendment 150.
The noble Lord, Lord Paddick, gently chided me—or if not me then a class of people—for being unsophisticated. It may well be that it was my lack of sophistication that annoyed the noble Baroness, Lady Chakrabarti, who, not for the first time—we saw it again last Wednesday—tilted at a windmill. I thought I had made it clear in the course of my speech that proposed new Clause 68(3A)(a) in my amendment was there in error and we should concentrate on proposed new paragraph (b). She is of course perfectly entitled to make whatever remarks she wishes, but the gravamen of my amendment was to reverse the burden of proof in relation to the unlawful activity point in paragraph (b) and not, as I think I had accepted, in relation to who should prove the trespass. Having cleared up that point, I think we can make a lot more progress.
I am also grateful to my noble friend Lord Hailsham for his support. Beyond that, I have nothing to say because, as I said in my opening remarks, the policy behind Clause 63 is for the Government to defend and to persuade this House and the other place about. However, there is some room for discussion. I know the Minister has had an enormous amount of work to do in dealing with the Bill, and indeed has a lot yet to do, so she has my every sympathy. However, if she  can find time perhaps to have a quiet discussion with me and others of like mind about proposed new Clause 68(3A)(b) in my Amendment 150 regarding the unlawful activity point, I would be most grateful. That having been said, this debate has now reached its natural conclusion for today’s purposes and I beg leave to withdraw the amendment.
Amendment 150 withdrawn.
Clause 63 agreed.

  
Clause 64: Guidance on exercise of police powers in respect of trespassers on land etc
  

Amendment 151 not moved.
Clause 64 agreed.

  
Clause 65: Causing death by dangerous driving or careless driving when under the influence of drink or drugs: increased penalties

Amendment 152

Lord Berkeley: Moved by Lord Berkeley
152: Clause 65, leave out Clause 65 and insert the following new Clause—“Causing death or serious injury by dangerous or careless driving when under the influence of drink or drugs(1) The Road Traffic Act 1988 is amended in accordance with subsections (2) to (7).(2) In section 2A (meaning of dangerous driving)—(a) for subsection (1)(a) and (b) substitute “he commits a breach of one or more rules of the Highway Code in a way that causes inconvenience, intimidation or danger to one or more other road users that is sufficiently serious that it would result in a person being disqualified automatically if the person drove in that way during a driving test”;(b) omit subsection (3).(3) In section 3ZA (meaning of careless or inconsiderate driving)—(a) in subsection (2), for “the way he drives falls below what would be expected of a competent and careful driver”, substitute “he commits a breach of one or  more rules of the Highway Code that causes inconvenience or intimidation to one or more  other road users but which is not so serious as  to amount to dangerous driving as defined in subsection 2A(1)”;(b) omit subsection (3).(4) Section 3A of the Road Traffic Act 1988 is amended as follows.(5) In the heading, for “by careless” substitute “or serious injury by”.(6) In subsection (1), omit “without due care and attention, or without reasonable consideration for other persons using the road or place”.(7) After subsection (1) insert—“(1A) If a person causes serious injury to another person by driving a mechanically propelled vehicle on a road or other public place, and the conditions in subsection (1)(a) to (d) are also met, he is guilty of an offence.”(8) Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (prosecution and punishment of offences: offences under the Traffic Acts) is amended in accordance with subsections (9) and (10).(9) In the entry relating to section 1 of the Road Traffic Act 1988 (causing death by dangerous driving), in column (4) (punishment), for “14 years” substitute “Imprisonment for life”.(10) For the entry relating to section 3A of the Road Traffic Act 1988, substitute—RTA section 3A(1)Causing death by driving while under the influence of drink or drugsOn indictment14 years or a fine or bothObligatoryObligatory6-11RTA section 3A(1A)Causing serious injury by driving while under the influence of drink or drugs(a) Summarily (b) On indictment(a) on conviction in England and Wales: 12 months, or a fine or both. On conviction in Scotland: 12 months or the statutory maximum or both.(b) 5 years or a fine or both.ObligatoryObligatory6-11(11) A provision of this section does not apply in relation to offences committed before the provision comes into force.”

Lord Berkeley: My Lords, we come to Part 5. I shall also speak to Amendments 167, 168 and 169. I am grateful to the noble Baroness, Lady Jones of Moulsecoomb, my noble friend Lady Hayter of Kentish Town and the noble Lord, Lord Russell of Liverpool, for their support for some of these amendments. This group contains four of several amendments put forward by a coalition of groups, including British Cycling, Cycling UK, Living Streets, RoadPeace and the Road Danger Reduction Forum—I declare an interest as a former vice-president of Cycling UK—and they have one thing in common: the intention to protect the lives of vulnerable road users.
Before explaining the amendments, I should clarify that they are all examples of issues that I and these groups have been urging the Government to consider as part of the wider review of traffic offences and penalties that the Government promised in 2014, seven years ago, but have still not carried out. I will say more about that when we get to Amendments 159 and 165, but I shall make two comments now that I hope will provide some context. The first is that the call for a wider review is now backed by a growing list of road safety groups as well as motoring groups. The second is that without that review there is a real danger that the Government’s very limited proposals in the Bill to amend road traffic law could in fact be counterproductive.
Part 5 currently contains just three proposed changes. First, it increases the maximum sentence for causing death by dangerous driving from 14 years to a life sentence. Secondly, it does the same for causing death by careless driving when under the influence of drink or drugs; these are traditionally seen as equivalent offences. Thirdly, it introduces a new offence of causing serious injury by careless driving, with a maximum sentence of two years. These amendments were consulted on as part of a rather limited review of road traffic offences and penalties in 2017—that is four years ago—and a number of parliamentarians in both Houses have been urging the Government to enact them ever since.
The road safety groups I have mentioned fear that the proposals will do very little to tackle the routine injustices arising from a seriously defective legal framework  and might in some cases prove counterproductive. Many noble Lords and parliamentarians—indeed, everyone—have their views on road safety and enforcement of penalties. I am sure that we will have a good debate about it this evening.
I have every sympathy with other noble Lords who are seeking either to amend or remove Clause 66, which would create a new offence of causing serious injury by so-called careless driving, with a maximum prison sentence of two years. I agree with those noble Lords—we will come to this later—who fear that if someone’s driving is genuinely just careless, it would rarely be sensible to impose a custodial sentence on them unless, for instance, they are a repeat offender; in other words, unless there are other reasons to believe that they need to be locked up in the interest of public protection.
This example highlights two problems, which Amendments 152 and 168 seek to address. One is the lack of clarity in the definitions of careless and dangerous driving and the huge inconsistencies in how these are applied by prosecutors and the courts. The other is the legal framework’s overreliance on custodial sentencing for road traffic offences, when driving bans would, in many cases, be much more appropriate.
Amendment 152 proposes redefining the core road traffic offences of careless and dangerous driving, and their equivalents involving causing death or serious injury, as well as those involving driving while under the influence of drink and drugs. At present, careless driving is that which
“falls below what would be expected of a competent and careful driver”,
while dangerous driving falls “far below” that standard. It is hardly surprising that judges and jurors have widely different interpretations of what counts as “below” and “far below” that standard, and even what is meant by a competent and careful driver. I am sure that noble Lords have their own opinions about that as well.
I suspect that many jurors, faced with someone accused of causing death or very serious injury, but who is not an obviously dangerous person, will think, “There, but for the grace of God, go I.” I cannot be sure of this, as the law prevents anyone attempting to research jurors’ reasons for their verdicts, but I can well imagine that the prospect of sending someone to prison for dangerous driving often leads jurors to opt for a careless driving conviction, even when the driving has caused
“danger either of injury to any person or serious damage to property”
that would be obvious to a competent and careful driver.
These words are also part of the definition of dangerous driving, and have been there ever since “dangerous driving” replaced “reckless driving” in the Road Traffic Act 1991. They were intended to provide objective definitions of dangerous and careless driving, which relate to the standard of driving rather than the state of mind of the driver. Yet time and again, prosecutors and the courts seem to treat driving offences as being merely careless if they result from momentary lapses of attention, however obvious the resulting danger would have been to a competent and careful driver. This needs some reflection.
The proportion of prosecutions and convictions for careless and dangerous driving has varied enormously, both over time and even in different parts of the country. For instance, when the offence of causing death by careless driving came into effect in 2008, it led to a huge reduction in prosecutions and convictions for causing death by dangerous driving, even though there had been no change in the definitions of careless and dangerous driving.
I will give two examples of the consequences, which are not very pleasant. Groups such as RoadPeace and Cycling UK can point to many more. A 66 year-old pedestrian, Charles Roberts, was crossing a 30-miles-per-hour road at Hyde Park Corner. Not many cars stick to 30 miles per hour around Hyde Park Corner, but a businessman from a foreign royal family crashed into him in his new, highly imported performance car. Just before the crash, the driver had accelerated hard when the lights went green and reached 54 miles per hour in a few seconds. By the time he noticed Mr Roberts crossing the road, it was too late to brake. Earlier this month, he was allowed to plead guilty to causing death by merely careless driving and escaped jail, receiving just an eight-month suspended sentence and a short driving ban. How was that careless? It could not have been, in my view.
This type of leniency causes huge additional distress to those who are already victims of serious injury and bereavement, and can have appalling consequences. There is another example of a driver causing serious injury to pedestrians outside Westfield shopping centre in London. He received just nine points on his licence after pleading guilty to careless driving; soon afterwards, he posted a WhatsApp video of himself back at the wheel bragging:
“Nine points ain’t gonna stop me driving.”
Nine months later, he was driving at 68 miles an hour in a 30-miles-per-hour street in London. This goes on and there are many examples.
Instead of relying on the terms “below” or “far below” the standard of a notional competent and careful driver, Amendment 152 proposes new definitions. Driving would be dangerous if it would result in a driver being failed automatically if they drove in that way during a driving test. How many noble Lords can remember their driving tests? I do, but it is probable that not many people drive that way today. It would be merely careless if it amounted to a breach of the Highway Code that affected another road user but was not dangerous. Amendment 152 also proposes that causing death by driving while under the influence of drink or drugs should be an offence, whether or not the driving was careless or dangerous. This is already the case for the offences of causing death by driving while uninsured, unlicensed or disqualified. It also creates an offence of causing serious injury by driving while under the influence. It seems odd that we do not have that.
Amendment 167 has two underlying aims. First, it reduces the maximum sentence for any offence that is merely termed “careless”. I cannot see how a driver can cause death or serious injury without causing danger that would be obvious to a competent and careful driver. That situation should be looked at again as part of this amendment. There is a huge discrepancy between maximum penalties for causing  death offences and the equivalent offence of causing serious injury. That needs looking at again. Amendment 167 increases the maximum penalties for the existing offences of causing serious injury by dangerous driving from five years to 14 years, and for dangerous driving from two years to five years on indictment.
Secondly, it reduces the maximum penalty for existing offences of causing death by careless driving from five to two years, and for the proposed new offence of causing serious injury by careless driving from two years to six months. It goes on in a similar vein but increases the minimum number of penalty points from three to six for causing serious injury by dangerous driving, for dangerous driving and for causing death by careless driving while under the influence.
I shall not go on for much longer, but I need to finish by speaking to Amendment 168, which would increase the maximum sentence for driving while disqualified from six months to three years and introduce a three-year minimum driving ban for driving while disqualified, and a few other things as well. If Amendment 152 were passed, Amendments 167 and 168 have been worded so that they would apply to the resulting new offences of causing death by dangerous driving.
I hope the Minister will consider these proposals seriously, particularly as part of the long-awaited review of road traffic offences and penalties. Shifting the emphasis of road traffic sentencing from prison towards driving bans would pave the way for a legal framework that was more likely to function as intended, because judges and jurors, as well as victims, would be more likely to see it as just and reasonable. I beg to move.

Baroness Hayter of Kentish Town: My Lords, I want to speak to Amendment 152, to which I have added my name. I welcome Clause 65, because it recognises the additional responsibility that a driver has who causes death by virtue of having drunk before she or he got behind the wheel of a car. It is always deliberate to do that. Every single person knows that it is dangerous to drive after drinking—it is never a mistake; it is never careless; it is never an oversight; it is never an unforced error. It is a deliberate act to get behind the wheel of a potentially lethal weapon, putting other people at risk, when under the influence. So it is quite right, as in the Bill, that the sentence for the most egregious of outcomes—killing someone—should carry the additional penalty when, quite unnecessarily, driving ability was impaired through drink.
I am personally and obviously most aware of this as a result of the actions of a drunken driver who killed my mother on the day before my 10th birthday. But another factor contributed, and that was the absence then of seat belts. There were years of campaigning, including an attempt in 1979 by the noble Lord, Lord Rodgers, who, as Secretary of State for Transport, said:
“On the best available evidence … compulsion could save up to 1,000 lives … a year”.—[Official Report, Commons, 22/3/79; col. 1720.]
After 13 failed attempts by Back-Benchers in both Houses, some 40 years ago, late in the evening of 28 July 1981, a Lords amendment in the name of Lord Nugent of Guildford succeeded in the Commons.
I was there to witness it, having an interest not just in drinking and driving but in seatbelts because of what happened to my mother. I recall my noble friend Lord Robertson, the chair of the National Seat Belt Survivors Club, speaking. There were many now in your Lordships’ House, including three in their seats today, who voted for that seatbelt amendment—I give a special call-out to my noble friends Lord Anderson, Lord Field, Lord Foulkes, Lord Campbell-Savours, Lord Clark, Lord Cunningham, Lord Dubs, Lord Prescott, Lord Soley, Lord Rooker and Lady Taylor, to the noble and learned Lord, Lord Clarke, and to the noble Lords, Lord Beith, Lord Baker, Lord Hailsham, Lord Horam, Lord Howell, Lord Hunt, Lord McNally, Lord Wigley, Lord Patten and Lord Patten of Barnes. Incidentally, I have a list of the others who voted the wrong way that night.
In 1982, the year before the new seatbelt law was enforced, 2,443 people were killed on our roads. By 2016, despite more cars being on the road, the figure had dropped to 816, so the estimate of the noble Lord, Lord Rodgers, was not an exaggeration. Why is that important to Amendment 152? It is because the sort of accident, caused by drink, which killed my mother might today, thanks to that seatbelt law, along with greatly improved rescue and medical interventions, have led not to death but to serious injury. But without Amendment 152, if death followed, the sentence would reflect the contribution of alcohol, but if the person survived, even with what are euphemistically called life-changing injuries, the contributing factor of alcohol would not be reflected in the sentence. That cannot be right, and that is what this amendment seeks to address.
Although I have not added my name to it, I support Amendment 168. It seems extraordinary that, where someone has either killed or injured someone though drink-driving, they could even think about driving again while disqualified. It seems like sticking two fingers up to society’s abhorrence of this irresponsible behaviour. A sentence of three years where people, disqualified, take to the wheel again seems a sensible measure. To get behind the wheel of a car having killed or injured someone, while being disqualified and therefore uninsured, seems a contemptible act. I hope that that is also an amendment that the Minister will feel able to accept.

Baroness Jones of Moulsecoomb: My Lords, I declare an interest as the president of the Road Danger Reduction Forum. I point out that our road traffic laws are quite outdated these days. The laws and the penalties have been patched together over the past few decades and the review is long overdue. I hope that Ministers will take that back.
At some point in history, it became acceptable for people to be killed by cars—pedestrians and cyclists. Other drivers just became collateral damage for our car-obsessed culture. I simply do not understand that.
I support all these amendments and am grateful to have worked with the noble Lord, Lord Berkeley, and the NGOs which put so much effort into pulling them together. There seems to be a horrific gap between the penalties for killing someone with your car and killing someone in any other way. Personally, I would like to  see mandatory lifetime driving bans brought in for many road traffic offences. At the moment, you can be found guilty of killing someone with a car and be allowed to drive yourself home from the court—it is absolutely unbelievable.
We talk so often about “accidents”, which is completely wrong, because that pre-supposes the outcome of any investigation of a collision. If you are saying it was an “accident”, you are saying, “Oops, sorry, couldn’t help it”, but there is always a cause for such incidents. During my time on the Met police authority, I got the Met police to change its designation of those events from “road traffic accidents” to “road traffic incidents”. We cannot prejudge why it happened.
There is also a huge amount of victim blaming. The noble Lord, Lord Berkeley, mentioned the case of the person who accelerated away. When I was knocked off my bike by a motorist, I was on a green light and the motorist was not. He just did not look. I had life-changing injuries from that. I did not do anything about it or follow it through because I think he genuinely just did not look properly, and what is there to do about that? At the same time, we accept such incidents far too often, and we cannot blame the victims all the time; we have to, at some point, start blaming the person who is driving a tonne of metal and who is extremely well protected in the case of any collision.
Let us please replace these patched-up, ancient laws with something that fits today’s circumstances, especially when we are trying to encourage more people to get out of their cars and get on bikes, walk home or get on buses. This really needs to change.

Lord Russell of Liverpool: My Lords, I was very happy to put my name to all these amendments. As you will be aware, the Cross Benches do not suffer from having Whips to tell us what to do, but when a call comes from the All-Party Parliamentary Group for Cycling and Walking, which I have the privilege of being an officer of, that is as near to a three-line Whip as a Cross-Bencher would recognise.
I was a head-hunter for 30 years, so, during that time, one met a range of human beings, many of whom had a particularly high view of the value of their own contribution in a variety of ways. One learned that there were three things in particular that the male of the species thought they were extraordinarily talented at. One of them was making love—I will leave it to noble Lords and noble Baronesses to decide whether the males of their acquaintance meet that hurdle.
The second is that, when interviewing someone, most men, particularly senior businessmen, think that they are extraordinarily talented at telling—within about 30 seconds—whether they are any good. The evidence suggests that they are 100% wrong all the time.
The third thing that many men think they are extraordinarily talented at is driving. Most of us tend to think that we are pretty good drivers—above average—and while, like most human beings, we occasionally make a mistake or forget one or two things that we should not forget, we are pretty relaxed and generous towards ourselves.
In researching this group of amendments and others that follow, the most clear and consistent factor across the whole range of road traffic offences and behaviour is that they are dealt with in an almost entirely inconsistent manner. The inconsistencies jump out at you, because many of the terminologies used are open to interpretation. Many of these terminologies were created and put into statute or guidance in the 20th century—and we are now, in case noble Lords had not noticed, in the 21st century. In the last two decades, the influence of technology has increased hugely, as all of us who drive are very aware.
I, perhaps, have a high danger capability, but I have bicycled in London for 40 years, on and off, and I drive. When I drive, like most people I have at least one device working in my car. One such device cleverly tells you when there are speed traps coming up, or policemen lurking by the side of the road—or whether there’s been an accident ahead. Equally, however, one is often listening or talking, or, even worse, texting. When I bicycle, I have nothing in my ears and I have all my senses about me. What I see, day in, day out, is pretty egregious behaviour, whether by motorists, cyclists or people on e-scooters—including e-scooters ridden by parents taking their four to five year-old children to school, standing in front of them with neither of them wearing a helmet, something that I find fairly alarming. I see this all around: it has become normal.
Until and unless we are more consistent and clearer about how we define acceptable behaviour when driving, or using any form of transport, and what is unacceptable—what is legal, what is illegal, and the gradations between them—we will continue to have an unacceptable level of inconsistency and more heart-rendingly tragic stories. My goodness, you find a lot of them if you do your research.
It is difficult to find rhyme or reason for such inconsistency. The Minister, as a lawyer, is well aware of the dangers that arise when there is inconsistency in how the law is understood. The Minister will also be aware, as are many lawyers, of the many opportunities that inconsistency affords lawyers. When there is inconsistency, or lack of clarity, in the law, it benefits a huge and very profitable industry in this country consisting of law firms that specialise in enabling people to escape, in a variety of ingenious ways, what are almost certainly the right penalties. That industry exists because of these inconsistencies.
These are clearly all probing amendments, but my plea to the noble Lord is that there is real reason and logic behind them, which is that a lack of clarity leads to inconsistency and stories of human tragedy.

Earl Attlee: My Lords, I am grateful to the noble Lord, Lord Berkeley, for his introduction to this group, and his outline of the problems. I also agree with much of what the noble Lord, Lord Russell, said about inconsistency. Unfortunately, however, the provisions in Clause 65 are rather unfair and disproportionate. This provision does not address the mischief. We already have the highest per capita rate of imprisonment in Europe, at 133 per 100,000, and this will not help.
I support Amendment 168, for the reasons outlined by the noble Baroness, Lady Hayter.
Clause 66 follows hard on the heels of Clause 65 in terms of its undesirability. Can the Minister confirm that these changes would increase the prison population, and if so to what extent?
One of the mischiefs is that, in the event of any road traffic accident, collision, or whatever you like to call it, the insurance companies and relevant contracts forbid policyholders from contacting the other party and, in particular, expressing any form of remorse or forgiveness. This totally flies in the face of the principle of restorative justice. The families, friends and victims can rightly feel aggrieved, due to the insurance regime and not the criminal law. There are other difficulties which I will not weary Committee with. The noble Lord, Lord Berkeley, was right to refer to serious injustices.
There is a problem with securing convictions for dangerous driving; convictions and prosecutions are often for the lesser offence of careless driving. I have much sympathy for the comments on careless driving and dangerous driving by the noble Lord, Lord Berkeley. I can say what the two offences are, but I have difficulty knowing how they are applied.
Clause 65 is about careless and dangerous driving in connection with drink or drugs. The maximum penalty for Clause 65-type offences is currently 14 years, and I have rarely seen anything like that applied. The Government are now proposing a more serious penalty—a life sentence—than for grievous bodily harm without intent.
The problem with the new provisions is that some of the substance thresholds for drug-driving offences are very low—well below the level causing impairment as advised by scientists. Furthermore, some substances can remain in the body for quite a while. Some people, such as noble Lords, never take recreational drugs. For some communities and socioeconomic groups, however, drug-taking is common. This could result in serious unfairness, with some offenders faced with a life sentence when their driving at the relevant time was not actually impaired by drugs.
Amendment 152, in the name of the noble Lord, Lord Berkeley, proposes a new definition and distinction between careless driving and dangerous driving, by reference to the standard required to pass the driving test. I remind Committee that I hold a qualification as an HGV driving instructor, albeit that it is a bit out of date.
It is surprisingly easy to get an automatic failure on a driving test, particularly under the heading “Examiner takes action”. Suppose that a candidate is driving along a main road but has left their left hand indicator on. Suppose that another vehicle is waiting to emerge from a side road and could be fooled into thinking that the test candidate intends to turn left off the main road. At that point, the examiner will say, “Cancel your signal”. That would be an automatic failure, because the examiner took action. I do not think, however, that any of us would call that dangerous driving. I think, therefore, that Amendment 152 is flawed.
However, I agree that it is too difficult to secure a conviction for dangerous driving. I wonder whether the careless driving offence ought to be confined to a momentary or short lapse in driving standards while  the new offence of reckless driving ought to consider whether there has been a pattern of numerous, relatively minor contraventions that, taken gather, make for a much more serious offence. I suggest that the Minister sets up a meeting with relevant officials and subject matter experts so that we can discuss these important matters offline and understand them better.

Lord Hope of Craighead: My Lords, I want to provide my support for a remark made by the noble Lord, Lord Berkeley, in the course of his speech. He said that the emphasis should be more on disqualification than on imprisonment. One can understand that, when a jury or magistrate is considering what to make of the facts of the case, the threat of imprisonment may influence the decision to go for the softer option rather than the harder one, whereas disqualification does not have that connotation at all. There is a lot of force in the noble Lord’s point.
I also support the point made by the noble Baroness, Lady Jones of Moulsecoomb. She talked about the patchwork of offences and the need for a much more balanced approach that looks at all the various offences across the board, rather than fitting together one or two things. That is what this enormously long Bill, which, I suggest, is really not suited for this kind of treatment, does.
Having made those remarks by way of support, if one examines the wording of the proposed new clause, one can see that it is a little risky to try to find new wording to replace the well-understood, well-trusted and frequently used phraseology that we have at the moment. For example, in the new meaning of dangerous driving, we are told that that would be where somebody
“commits a breach of … the Highway Code in a way that causes inconvenience, intimidation or danger”.
The word “inconvenience”, which is one of the three alternatives, does not seem appropriate for dangerous driving. I suggest that, if this is to go any further, this word should come out because it is not descriptive of the effect of dangerous driving at all. Similarly, the next subsection defines “careless or inconsiderate driving” and includes “intimidation”, which does not really fit with what one is talking about when one talks of careless driving or driving without due consideration for other road users.
I draw these points to the Minister’s attention because they show that it is a quite a delicate matter to alter the existing wording, which I would wish to preserve instead of trying to introduce a fresh definition.
Finally on definitions, in subsection (4), the words “serious injury” are equated with
“causing death by careless driving”
and the proposal is to insert “or serious injury”. What amounts to a serious injury is difficult to define but, if one is moving in that direction, one would have to introduce additional words, such as “serious injury”. One finds an example in Clause 66, where there is a definition by reference to the existing standards in the criminal court.
I am not sure that that goes far enough when one considers the consequences of some of these offences and the threat of imprisonment, but one has to give very careful thought to what is really meant by “serious  injury”. Is somebody breaking their wrist due to falling on the ground enough? Is something that requires them to go to hospital enough? Or is one looking at something much graver? That brings it closer to the idea that one is trying to bridge what might seem to be a gap, where somebody is injured so seriously that it is only by the skill of a surgeon that death is avoided—I can quite see that there is something that needs to be addressed there—but just using the words “serious injury” may mean walking into a trap that it would be better to avoid.

Lord Judge: My Lords, I will speak briefly. The Road Traffic Act and all its many successors have left us with a law in which a simple textbook, Wilkinson’s Road Traffic Offences, is about as fat as a successful marrow. It is absurd that our law is so complicated on something that everybody, or nearly all of us, does every day. Our children will learn it; the day they get to the age of 17, they will want to drive, and so on and so forth.
I entirely agree that this is a patched-up proposal. Personally, I strongly support the idea that we should get this review conducted and analyse exactly what it is that we want to achieve with a modern law relating to road traffic. That law should address not merely the conduct of a person at the wheel of a car but the conduct of a person on an e-scooter or a person riding a bicycle, some of whom are appalling in the way they ride. It should also include pedestrians who step out into a path and make a driver pull away, causing them to knock somebody else over. We need synchronisation of our laws on these issues, which is why I support the noble Lord, Lord Berkeley.
That said, I want to make a different point and indicate how strongly opposed I am to a proposal that would enable a prison sentence to be imposed on a motorist who was not driving dangerously or taking deliberate risks, and was not under the influence of drink or drugs, but simply made a mistake while at the wheel. I agree with the noble Baroness, Lady Jones, that “road traffic accident” is not the right phrase to use. It is a road traffic incident, which must be examined, as the evidence shows.
You can, perfectly reasonably, accuse someone who drives without due care and attention of being negligent, but criminal culpability is inevitably low because it is negligent. Driving without due care and attention is an offence; it is negligence. However, we do not send people to prison for negligent mistakes causing serious injury in the context of, for example, the medical profession. A mistake is made. It is negligent. There is an action. Various steps are taken in respect of the doctor, the nurse, or whoever it might be. The result to the victim is very serious. So, when we examine whether a doctor or a nurse may be prosecuted, we look not for evidence of negligence, a lack of due care or a mistake, but for something demonstrating that he or she fell far below the standards required by that profession of that individual in that job at that time. We must be careful not to introduce a different standard of approach to motoring offences. We must remember that this offence is also committed by the young mum whose children in the back of the car start howling because there is a wasp in the car, in the way that children do. Is  she momentarily distracted? Yes. Should she have stayed rigidly looking to the front? I suppose so. Is it realistic to think that she, or most mums, would stay that way when her child is screaming in the back? No. Let us keep it realistic.
I am also troubled by the way we approach consequences in the whole of this road traffic law. We have situations where identical culpability can lead to completely different sentences because there has been a death. Of course a death is dreadful, but does the offence become more serious because there are two or three deaths? Personally, I think it does, but there is a question that needs to be answered: how far are we addressing the culpability of the driving as against the consequences? Death by dangerous driving is no trouble; after all, you are driving dangerously. Drink driving is no trouble; you choose to have a drink. Driving to take risks and show off to your friends is no trouble; you are driving dangerously. However, we need to be cautious about the introduction of prison sentences for people whose standard of driving amounts to negligence, not gross negligence.

Baroness Randerson: My Lords, I echo the sentiments of the noble Lord, Lord Berkeley, in thanking the coalition of organisations that have briefed us on Part 5, because they are experts in the field. The short debate we have had reveals the crying need for a comprehensive review of driving sentences. The Government’s push is towards increasing penalties—longer prison sentences—and each of these amendments tackles an issue that needs attention that the Bill is really not going to provide.
The four amendments in this group have little in common with each other. I agree with the local and learned Lord, Lord Judge, on the difference between different offences which could have a very similar outcome. There is a world of difference between causing death while drink-driving or drug-driving, which is a conscious decision that you make, and causing injury or maybe death by carelessly opening your car door: that is at the other extreme. By chance, I saw such an incident last week. I saw a motorist drive up carefully and park, then get distracted by their passenger who had left something behind and who leapt back into the car to retrieve it at the last moment. The driver opened the car door in the path of a cyclist who was not showing lights and it was at night. Now, no great injury was caused in that case, but it could have been. I was standing there waiting to cross the road and I have absolutely no doubt that it was nothing other than distraction and carelessness from a driver who was driving carefully. There is a general push in the Bill towards stiffer sentencing, whereas we should be looking at more effective and appropriate sentencing for drivers, the overwhelming majority of whom are not of the criminal classes and do not have a criminal intent when they drive.
We also need to be designing our roads in a way that makes them much safer. The number of amendments tabled to Part 5 relating to road traffic reinforces my view, and that expressed here today, that we need a thorough review of the laws and penalties that govern driving. I shall say more about this later on my own amendment on this issue. Finally, I refer to the comments  of the noble Lord, Lord Russell, who drew attention to the inconsistency of the current legislation. Add to that the fact that it is wildly out of date and there really is a need for government action.

Lord Brown of Eaton-under-Heywood: My Lords, I had proposed to speak specifically to my noble and learned friend Lord Hope’s amendments, which are in another group but, frankly, these amendments are all mixed up together and I am rather surprised that they are not grouped. I agree with everything that the noble and learned Lord, Lord Judge, said. What it surely comes to, first, is that it is a good idea to look at the astonishing way the law has developed over recent decades.
When I went to the Bar 60 years ago, basically there was dangerous driving and careless driving, as there has been ever since. As now, there were well-recognised meanings and levels within the process of administering this law, and the courts—the magistrates’ courts particularly—and the practitioners know about that. There was also the very rare and very grave offence of motor manslaughter—manslaughter in the context of motoring. That applies to gross negligence cases and is a common-law offence. There is no maximum sentence but life is available. Then, gradually, over the years, sentences became more draconian. A two-year prison sentence was made available for death by dangerous driving. Then, in 1988, 14 years—seven times the original sentence—became the stipulated maximum sentence for causing death by dangerous driving. Now, of course, it is proposed to go from 14 years to life. Is it really contemplated that, short of some quite extravagant case of manslaughter, anybody really ought properly to go to prison for more than 14 years?
Then there followed in 2012, by the LASPO Act amending the 1988 Act, two additional offences. For causing serious injury by dangerous driving, a five-year maximum was introduced, and for causing death by careless or inconsiderate driving, again a five-year penalty. But it is now proposed to increase that in turn, so that henceforth mere careless and non-deliberate driving, of which, surely, hardly a Member of this House cannot have been guilty at some point, combined with the misfortune—misfortune principally to the victim who is hurt, but it is also an unlucky day, is it not, for the driver who on that day hurts somebody?—should be liable to a prison sentence.
By all means, I encourage those such as the noble Lord, Lord Berkeley, and the noble and learned Lord, Lord Judge, who put the emphasis on increasing periods of disqualification. It is a privilege to drive and, to that extent, inevitably to put the public to some degree of risk for the reasons I have just given. You can forfeit that much more readily than you should be sent to prison. Likewise, with fines: again, by all means fine people a very great deal, but putting aside the deliberate offences—uninsured driving, driving when disqualified, driving under the influence of drink or drugs and all those sorts of offences—we should not, I respectfully suggest, penalise somebody who has neither driven dangerously nor killed somebody by sending them to prison.
It is one thing to criminalise death by carelessness; the law has always paid especial heed to acts that result in death. For example, if you attack somebody who dies, you are still committing murder, even though you intended only some substantially lesser injury. Let us pause just for a moment and see what is really serious bodily harm in this context. The noble and learned Lord, Lord Judge, referred to the Wilkinson textbook, the acknowledged textbook in this area. The injury, to be a really serious bodily injury, does not have to be permanent, does not have to be dangerous and does not have to require treatment. It takes account, for example, of such things as psychiatric damage to a vulnerable person. Therefore, it is one thing in the context of murder, but surely not in this proposed new category of offenders. It is a step too far.
I end by recalling that the late Duke of Edinburgh, a few years before he died, was driving, I think, a Land Rover out of Sandringham on to a public highway, there colliding with another vehicle, driven by a woman who—I am pretty sure I recollect correctly—broke her wrist. He wrote her, of course, a letter of apology and so forth. Should the Duke on that account—undoubtedly careless driving and undoubtedly a serious injury within the meaning of this legislation—have been liable to a prison sentence? I respectfully say no.

Lord Rosser: I will, once again, I hope, be relatively brief. We welcome Clause 65 and the Government’s actions to increase sentences for those who cause death by dangerous or careless driving under the influence of drink or drugs. Here, at least, is one part of the Bill where we can support its intentions.
We also support the aim of the amendments in this group, which seek to improve road safety and keep dangerous drivers off our roads. I pay tribute to all those, including many noble Lords, who have campaigned to improve road safety and reduce deaths and serious injury. We particularly add our support to Amendment 152, which would widen those protections and increase sentences for causing serious injury while under the influence of drugs or alcohol. Having said that, of course, there can be a slim difference between serious injury with a life saved and serious injury with a life lost.
Clause 66 inserts an offence to fill a gap in the law of causing serious injury by careless or inconsiderate driving. I note some of the comments that have been made in respect of causing serious injury by careless or inconsiderate driving, but certainly we support the basic intentions of what is proposed.
The issue of car dooring has been raised for some years by cycling groups, and we have called on the Government to develop a comprehensive new national cycling safety campaign, aimed at not just cyclists but motorists. During the lockdown, cycling increased by, I think, as much as 200% at weekends, with significant increases during the week. We will not be able to build on that progress—I am sure we all regard an increase in cycling as progress—unless we take action to make our roads safe enough to cycle on. What plans do the Government have to look at road safety issues impacting cyclists, as well as other drivers?
I look forward to the Minister’s reply to this debate and to the amendments which we have been discussing.

Lord Wolfson of Tredegar: My Lords, I am grateful to the noble Lord, Lord Berkeley, and others for speaking to these amendments. This group considers the sentencing of road traffic offences, and I propose to take each one in turn, if I may. I hope that the noble Lord will understand if I do not comment on the specifics of the particular cases he mentioned; not only do I not personally know about them but, as a matter of general approach, it is unwise for a Minister to comment on a court’s decisions in particular cases when they have obviously not heard the evidence and seen the facts. I do, of course, extend my condolences to the victims in those cases. I also acknowledge the moving contribution from the noble Baroness, Lady Hayter of Kentish Town, and her particular background in this area.
The noble and learned Lord, Lord Judge, reminded us that the law in this area is complex; it now fills a very weighty tome, Wilkinson’s Road Traffic Offences. I will come back at the end of my remarks to the question of an overall review, which the noble Lord, Lord Berkeley, also mentioned. Despite the fact that they perhaps take up more space than they ought to, I think it is fair to say that the current driving laws, while not perfect, work well in the vast majority of cases.
Importantly—this theme ran through the Committee’s debate and was a point made by the noble Baroness, Lady Jones of Moulsecoomb—we have to strike a balance between the culpability of the driver and the harm or consequences which they cause. That is particularly important in the area of driving, where a moment’s inattention can have such drastic consequences.
I will not comment on the other two areas of life which the noble Lord, Lord Russell of Liverpool, speaking unwhipped, put before us. However, it is often commented that the average person does think that they are an above average driver. Even my maths is good enough to realise that we cannot all be above-average drivers, at least not all the time.
The fact that some of these amendments seek to lower the culpability required before an offence is committed, and others seek to raise the level of culpability needed, might indicate that, broadly speaking, we have the balance about right at the moment. I will speak to the amendments in turn, but I can assure the noble Baroness, Lady Jones, that victim blaming is no part of my or the Government’s response to any of them.
Amendment 152, which aims to replace Clause 65 in the Bill, does two main things. First, it would replace—I think the noble Lord said it “redefines”, but it effectively replaces—the current objective test of what amounts to careless or dangerous driving with a new test which is, essentially, linked to breaches of the Highway Code. The new test would apply to all offences which relate to or incorporate careless or dangerous driving. Secondly, the new clause would replace the existing
“causing death by careless driving under the influence of drink or drugs”
offence with new offences of causing death “or serious injury” by driving under the influence of drink or drugs. The Government have serious concerns about  the way this amendment would change the current law. We believe that it would render the current law inconsistent, unworkable and unjust. I will try to explain why we say that.
Given the particular nature of driving, bad driving offences are based not on establishing the intent of the driver but on considering the standard of the driving. The test in law compares the driving of the defendant to that of a notional careful and competent driver, so it is an objective test. If the driving falls below that of the careful and competent driver, the driving is careless; if it falls far below that standard, it is dangerous. This amendment seeks to replace that objective test based on the standard of a person’s driving, which is the current law, with a new definition of dangerous driving which applies to all offences of dangerous driving, including causing death or serious injury.
As we have heard, the proposed new test is linked to breaches of the Highway Code, and here the problem starts. Noble Lords will know that the Highway Code contains references to behaviour that gives rise to criminal offences, and that those offences are set out elsewhere in legislation. But it also contains advisory provisions which are not criminal offences. We should be clear that, when we talk about a breach of the Highway Code—when you do something which it says you should not be doing—you are not always referring to something which amounts to criminal offending. Indeed, often breaches of the Highway Code are not criminal offences.
As the noble and learned Lord, Lord Hope of Craighead, pointed out, under this amendment the standard for dangerous driving could be met by a breach of the Highway Code that causes no more than a little “inconvenience”—one of the tests in the amendment—to another road user. At the same time, the offences covered by dangerous driving attract significant custodial penalties, despite the attempt to limit this offence to “serious” breaches of the code. Serious breaches are, in turn—and, with respect, I suggest inappropriately and impractically—defined in relation to passing or failing a driving test. So where does that get us, when we put it all together?
In this amendment, if you breach the Highway Code in a way which means that you would automatically have failed a driving test, that is dangerous driving. That means that careless driving is defined as everything that amounts to a breach of the Highway Code but is not so serious as to result in a person automatically failing a driving test. This is illogical. It would mean that a person could commit this new careless driving crime and be convicted of driving carelessly but, had he driven in that way during his driving test, he would have passed. It is a strange form of careless driving which amounts to a criminal offence but enables you to pass your driving test. The problem underlying the approach in this amendment is that this has moved us away from the objective test which we presently have in law, looking instead to breaches in the Highway Code or passing or failing driving tests.
We heard from the noble and learned Lord, Lord Brown of Eaton-under-Heywood, a history of the law in this area. The current test has been arrived  at after much consideration and revision over many years. I do not suggest that it is a perfect solution, but it is a good solution and works in the vast majority of driving cases. The practical problems that I have identified are a barrier and should make us think not once or twice but three or four times before we replace the current objective test with something else—better the devil you know.
The second strand of Amendment 152 creates new offences of causing death or injury while unfit to drive because of alcohol or drugs. It is important to note that it removes the requirement for the driver to be driving carelessly from the existing offence of causing death by careless driving under the influence of drugs or alcohol. The penalties for these new offences would be 14 years’ imprisonment for causing death, and five years for causing serious injury. Again, let us be very clear about what the amendment does. The removal of the requirement for the driver to be driving carelessly means that a driver with no or very limited culpability for the death as a result of their driving—other than the fact that they should not have been on the road while under the influence of drink or drugs—would be guilty of an offence with a 14-year maximum penalty. They should not be on the road and they are under the influence of drink or drugs, but their driving is perfect. That is the problem with this offence.
If noble Lords were to retort, “Just a minute, they shouldn’t have been on the road in the first place. That’s why they go to prison”, I would reply that, quite apart from the fact that this ignores the quality of the actual driving, the same penalty is not imposed for other offences where the driver should not have been on the road in the first place. It is not proposed, for example, for causing death or serious injury for driving while disqualified, unlicensed or uninsured.

Baroness Hayter of Kentish Town: Is the Minister saying that if we drafted this slightly better, with “dangerous driving” included, he might accept it?

Lord Wolfson of Tredegar: I will be very careful here because the law in this area is really complex. I was going to say this later but will preface it now. I am very happy to have a discussion on these points. I am reluctant to reply to a drafting suggestion from the Dispatch Box but, if the noble Baroness writes to me, I will certainly write back and we can have a discussion. I hope that is helpful and answers her question.
On this part of Amendment 152, the five-year maximum penalty for causing serious injury also contrasts with the two-year maximum proposed for the new offence of causing serious injury by careless driving in Clause 66, although the culpability levels are broadly similar. Saying clearly what should not need to be said, we recognise the seriousness of driving while unfit to do so through drink or drugs, but we also must have laws that reflect the various levels of culpability of drivers across the piece. Perhaps it will be more useful to discuss this against another draft, if that is what the noble Baroness wants. This draft does not strike a fair balance and therefore we cannot support it.
Turning to Amendments 167 and 168, I assure the noble Lord, Lord Berkeley, that we take road safety seriously. The sanction of disqualification is a very helpful tool, an integral part of the overall approach to road traffic enforcement and, therefore, to promoting road safety. However, again the sanction of disqualification must be proportionate. He proposes amending disqualification periods for stand-alone offences from two years to five years. We are not persuaded that an increase of that magnitude is warranted for all the offences which the amendment would encompass. For example, two offences that would fall within the amendment involve causing serious injury to other road users, and another covers any offence where the driver has incurred a disqualification in the previous three years. The proposed increase is unduly harsh in these circumstances.
We would want to think carefully and coherently across the piece about amending the periods of disqualification for various offences. We want to keep sanctions at the right level, and we keep this under constant review. With respect, the noble Lord has much to contribute to the road safety debate. I would be very happy to meet him and others to discuss potential changes to the existing periods of disqualification. Perhaps we can arrange that. I heard what my noble friend Lord Attlee said, and recall that on the then Domestic Abuse Bill, we found that what we called a teach-in was quite useful. That might be a useful way of organising this, with specialist officials in the MoJ and/or the Department of Transport. I will be in touch with the noble Lord on that.
Also, in the context of disqualification, the noble Lord proposes reducing, from three years to two years, the timeframe for which offences would be regarded as repeat offences. As repeat offences, this would trigger a longer disqualification period, of two years rather than 12 months. Three years is the time for the totting-up process. We think that it is useful to keep the same period for repeat offences.
I turn to the amendments to the penalties for repeat instances of certain offences. The noble Lord proposes an increase in the minimum period of disqualification from three years to 10 years. Ten years is a considerable period of disqualification. It would affect not only the disqualified person but possibly their families in serious ways. We must remember that those convicted in these circumstances often also face a custodial sentence in addition to any driving ban that they receive. Therefore, one must look at the disqualification period in that context.
The length of a driving ban is at the discretion of the courts. They sometimes impose a lifetime ban. The noble Lord will know, but I will make it clear to the Committee, that the courts have a statutory duty to take into account the impact of a custodial sentence when imposing a driving ban, so it is not diminished by the period spent in custody. However, we do not think that a minimum period of 10 years would be proportionate in respect of the offences that currently carry a three-year minimum period of disqualification for repeat offences. The three-year period is a minimum. As I have said, the courts can disqualify in excess of that if necessary.
The noble Lord also proposes a minimum disqualification period of two years for drivers convicted of dangerous driving. A person who is convicted of dangerous driving is still subject to obligatory disqualification for a period of one year. That can be increased by a judge in light of particular circumstances. Again, we are not persuaded that a conviction of dangerous driving warrants a longer minimum ban, nor do we propose to accept the proposal to reduce the penalty for the offence of causing death by careless or inconsiderate driving from five years to two years. This is a good example of the balance I spoke about earlier. As the noble and learned Lord, Lord Brown, mentioned, when death results, the law often looks at things differently. When drivers cause the death of another person, a road user of any sort, through unacceptable behaviours such as careless driving, the penalties have to be sufficient to reflect the seriousness of their actions.
Turning to the amendments on the offence of driving while disqualified, if this sanction is to work effectively, people must be forced to adhere to the disqualification period. We know that that is not always the case. That is why we have a dedicated offence of driving while disqualified, which carries a maximum penalty of six months in prison. We consider that the right penalty for that offence. It is sufficiently effective in discouraging people from driving while disqualified and we do not believe that a longer period would be any more effective.
Finally, the noble Lord proposes an amendment which seeks to make it an offence to cause death or serious injury when opening a car door, with a penalty of a fine, imprisonment or both, obligatory disqualification from driving and obligatory endorsement of penalty points. We believe that the new offence is unnecessary, because causing death or serious injury when opening a door would already be covered by existing offences under Regulation 105 of the Road Vehicles (Construction and Use) Regulations 1986, which is brought into play in this context by Section 42 of the Road Traffic Act 1988.
More generally, while I recognise the importance of checking the road carefully before opening a car door, the penalty must be proportionate. The penalty for the current offence is limited to a fine and we do not have any evidence base upon which to agree or accept that the new and much higher penalties for the offence proposed by the amendment are warranted or justified. However, we are updating the Highway Code to improve guidance for opening vehicle doors carefully and safely to minimise any risk this may pose. We have been promoting what I think is called the “Dutch reach”, where you reach across—I will try to give an example from the Dispatch Box—to open the door with the hand which is further from it, because that forces you to look around.
There is another point here. It is called the Dutch reach because it comes from Holland, where a lot of people cycle. To pick up a point made by the noble Lord, Lord Rosser, cycling is good for people not just when they are cycling but when they are driving. If you are a cyclist, you can also become a better driver, because you are more aware of cyclists on the road. We certainly appreciate the point and are looking at it.
I will pick up two further points from the noble Lord, Lord Berkeley. First, on the example he gave, I am not sure I took it down accurately, but my initial reaction was that alcohol is always an aggravating factor. However, I will check Hansard and can perhaps write to him with a specific response on that point. Secondly, on the 2014 review, that was announced and we have been working on it. We published a consultation on driving offences and penalties relating to causing death or serious injury and are now bringing forward proposals for reform of the law, which we committed to in our response to the consultation. My colleagues at the Department for Transport are taking that work forward on the broader issues of road safety.
Finally, the noble Baroness, Lady Randerson, said that she would pick up her point in a later group so, with respect, I or my colleague will respond to it then. My noble friend Lord Attlee asked about an increase in the prison population. The short point here is that people go to prison only when the court cannot impose another offence and they go to prison immediately only when it is sufficiently serious that the sentence cannot be suspended. I hope that gives him some reassurance. I am grateful for the support of the noble Lord, Lord Rosser, on Clause 65. I note his support for the amendments, but for the reasons I have set out, I hope those proposing these amendments will feel able to withdraw them.

Baroness Jones of Moulsecoomb: Before the noble Lord sits down, I point out that he is arguing for the status quo when we have already said that there is no rationale behind it. There is no rationale behind two years or three years. The fact that he thinks it sounds reasonable is really not good enough. It is urgent to get this review together. Which organisations have the Government taken advice from on this, before bringing in these new penalties? Who did they take advice from? It sounds as if they did not take it from people who understand the situation as it is on the roads.

Lord Wolfson of Tredegar: I am afraid that, with respect, the noble Baroness is wrong on both points. There are provisions in the Bill which change the law considerably; there are quite a few in this area. I am certainly not arguing for the status quo but rather for the provisions we have put in the Bill. I have sought to explain why, if we are going to change other parts of our road traffic offences, we need to do so carefully and make sure that there are no unintended consequences. I hoped my explanation of the new test for dangerous driving based on breaches of the Highway Code and the consequences that brings with it was a good example of that.
As to who we have consulted, I assure the noble Baroness that my department and the Department for Transport speak frequently to a range of stakeholders. Perhaps I can write to her with a list, exhaustive or possibly non-exhaustive, of the people we have spoken to.

Baroness Jones of Moulsecoomb: I also point out that when the Minister demonstrated the Dutch reach, he did so from the point of view of a Dutch car rather than an English one. Perhaps he would like to practise that at home.

Lord Wolfson of Tredegar: The noble Baroness and I are sitting on opposite sides of the House. If I was driving, I would normally open the door with my right hand, so I was turning round to open it. I think my example was right, but I will look at the video tonight and write to the noble Baroness if I was wrong.

Earl Attlee: My Lords, my noble friend has been very helpful, but I am slightly worried that he does not fully appreciate how difficult it is to secure conviction for dangerous driving. On the Dutch reach, could we not include this in the driving test, which would mean that driving instructors would have to teach their students how to do it? I like to think I am an experienced driver and I carefully check my mirror before opening the door. Not doing so is an easy mistake for a novice driver to make, but it would be easy to train those drivers to use the Dutch reach.

Lord Wolfson of Tredegar: I am certainly aware of the differences between dangerous driving and careless driving. Dangerous driving is reserved for those instances of driving which fall “far below” the objective standard. The question of whether the Dutch reach should be included in the driving test is a matter for colleagues at the Department for Transport. I will pass that suggestion on; I hope they will get back to my noble friend on that point.

Lord Berkeley: My Lords, we have had a fascinating debate on these amendments and I have no regrets about tabling them. They came from the group that the noble Baroness, Lady Jones, mentioned—she has also thought about this very carefully. I would like some further information on whether they talk to each other. They will look at what the Minister has said tonight with great care and read the comments from the many other noble Lords and noble and learned Lords who have spoken. It has been fascinating to hear the different views.
One thing that we need to focus on is the need for safety. The Dutch reach is just one example. I have cycled in Holland quite often; motorists there tend to be much more careful when opening doors, but so are cyclists. In Holland, you do not get the kind of aggressive, Lycra-clad people who so many motorists in this country dislike. However, that is no excuse for causing any danger to them.
What also follows from the Minister’s comments is that there needs to a reflection on getting people to think before they offend, because a lot of people do not, and when they offend say, “Oh, it was a mistake,” or whatever. People need to be responsible for their actions.
Thirdly, there is a wide lack of enforcement, which noble Lords have alluded to, covering motoring, cycling and occasionally walking. Some of my amendments reflect the feelings of people at the vulnerable end of the spectrum that there is a lack of enforcement, and they would like to see things tightened up and balanced.
Lastly, I am concerned, and have been for many years, about how the Minister’s department and the Department for Transport work together, or occasionally possibly do not. I have no evidence that they have not worked together on this matter, but it would be helpful  to hold discussions with both departments before Report. I see that the Minister does not like my amendments. We do not like some of his. We are a long way apart, but it would be helpful to try to move together. On that basis, I beg leave to withdraw my amendment.
Amendment 152 withdrawn.
Clause 65 agreed.

  
Clause 66: Causing serious injury by careless, or inconsiderate, driving

Amendment 153

Baroness Stowell of Beeston: Moved by Baroness Stowell of Beeston
153: Clause 66, page 63, line 21, after “vehicle” insert “or pedicab”

Baroness Stowell of Beeston: My Lords, I will speak to this amendment and my other amendments in this group. First, though, I welcome my noble friend Lord Sharpe to the Front Bench, and I look forward to his response.
These amendments are about pedicabs. I will briefly explain the problem, and then come to the solutions and proposed way forward. For any noble Lords unsure about what I am referring to, pedicabs are passenger vehicles operated by a cyclist at the front pulling a small carriage at the back. Sometimes they are known as rickshaws. Noble Lords may have seen them lined up on Westminster Bridge touting for business from tourists. They are often covered in flashing lights and blaring out loud music. They are mainly found in the West End and other tourist hotspots, whether that is Oxford Street and other major shopping zones during the day, or Leicester Square, Soho and the theatre district at night.
We have an unacceptable situation. These vehicles are legal, but, believe it or not, they do not need insurance. There is no way to identify the drivers, there is no requirement for operators to undergo criminal records checks, most vehicles do not undergo any safety or maintenance checks, and there is no control over the fares charged. Pedicabs are the only form of public transport in the capital that is completely unregulated.
It may assist the Committee if I explain very briefly the history of how this unacceptable anomaly occurred. Nearly 20 years ago—lawyers here will be able to expand on this—pedicabs were defined in case law as stage carriages in Greater London under the Metropolitan Public Carriage Act 1869, so do not fall under Transport for London’s licensing powers. This is not the case elsewhere in England and Wales, where they are defined as hackney carriages and subject to local licensing and regulation.
The upshot is that pedicabs can ply for hire in any street or place in Greater London. They are acting with impunity and in competition with black cabs, and where appropriate with licensed taxis, for custom. To state the obvious, those vehicles are subject to a range of regulations and exacting standards. It will not surprise the Committee that this impunity and the full  knowledge that they cannot be held to account leads to a wide range of safety and traffic incidents. This includes dangerous driving, such as going the wrong way up one-way streets—I have personally seen pedicabs come on to pavements—nuisance driving, parking in bus lanes, and impeding traffic. There is a range of passenger safety issues associated with roadworthiness, and some vehicles have motorised the bicycle at the front, creating more risks to passengers. Hit and runs are not uncommon.
Then there is the nuisance and anti-social behaviour, which has a detrimental effect not just on businesses and residents but on the reputation of our capital city. There is aggressive touting for business; ripping off passengers with outrageous charges; very loud music played all day and night; harassment of passengers, including women; violence between drivers; and even reports of facilitating drug dealing across the city.
The Anti-social Behaviour Crime and Policing Act 2014 has been useful to some extent, but it is only a short-term measure, as it takes a huge amount of evidence, time and police resource to apply. We need regulation to prevent those wishing to give our capital city a bad name having the chance to do so in the first place. Having said all that, there are some reputable firms that want regulation. Indeed, there is an environmental case for pedicabs to be part of London’s public transport system, but that can happen only if they come under the control of Transport for London.
What is the solution? Before I explain my amendments, I want to highlight a better solution. My honourable friend Nickie Aiken, MP for the Cities of London and Westminster, has been campaigning tirelessly on this issue since she was elected in 2019. She has cross-party support from London-based MPs, many of whom have campaigned on this issue since Labour was in government. Her Private Member’s Bill, due its Second Reading on Friday 19 November, would bring pedicabs under the remit of Transport for London and allow it to introduce proper regulations. That would bring London into line with the rest of England and Wales. The Bill, and what it will achieve, is supported by MPs, the Mayor of London, Westminster Council, Kensington and Chelsea Council, other affected councils, Transport for London, the Soho Society, the Marylebone Association, the Heart of London Business Alliance, and a wide range of other bodies that are members of the Regulate Pedicabs Coalition. No one is against this, so I know she is pushing at an open door when it comes to government support. For the last five years, Minister after Minister has promised to introduce legislation to make this regulation happen when an appropriate legislative vehicle is available, but so far none has arrived.
So, here is what I am asking. First, I would like the Minister to confirm that the Government will support Nickie Aiken’s Private Member’s Bill if it gets a Second Reading on 19 November. But notice that I said “if”, because, even with the Government’s support, we face a real risk of not getting that far. This is the third attempt to introduce legislation via a Private Member’s Bill. Nickie’s Bill is the fifth due to be debated on that day, so there is a real danger that it will not get a Second Reading and will fall again. To be fair, this  Private Member’s Bill is a suitable vehicle because it is simply bringing London in line with everywhere else, where local authorities can already regulate. It is not introducing new policy; it is just correcting something which needs to be corrected.
But that may not happen—she may not get her Second Reading—so we need a plan B, because we cannot let this situation go on any longer. My amendments are not the solution we need, but they are a step in the right direction. If my honourable friend’s Bill falls again before it gets over that first hurdle, I will request a meeting with the Minister to discuss my amendments. Amendments 153 and 154 would bring pedicabs within the scope of the offence of causing serious injury by careless or inconsiderate driving, and Amendment 162 would deal with nuisance noise by preventing the loud music they play all day and night. If your Lordships have never heard these pedicabs going about with their music blasting, I have to stress that it is really very loud. In the course of pursuing that with the Minister, I would also be looking to see what more the Government can do via this Bill, because this situation cannot go on. We need regulation so that pedicabs meet the same standards we expect of other forms of public transport.
I have no personal interest in this matter. I do not live in any of the areas affected; I have no connection to any of the groups which have been lobbying for this change. But it bothers me greatly as I go about my business in London that our black cabs—which are synonymous with London around the world and an important part of our reputation for quality and high standards—are forever facing more restrictions while vehicles and drivers which too often are a disgrace to our reputation are allowed to operate without having to comply with any law, regulation or rule. I look forward to my noble friend’s response, and I beg to move.

Lord Pannick: My Lords, the noble Baroness has made a powerful speech, which I find entirely compelling. My only concern is that her amendments are far too modest. If the Private Member’s Bill does not proceed satisfactorily, I suggest that she brings forward on Report an amendment which makes it a criminal offence to operate such a vehicle in London without a licence.

Lord Berkeley: My Lords, I am probably alone on this one: some years ago I went away from my wedding service in a pedicab in London, and I rather enjoyed it.
I understand where the noble Baroness is coming from, but I think the definition in this amendment will cause a few problems. It says that a pedicab is
“a pedal cycle, motor cycle or power-assisted cycle, or such a vehicle”—
I did not know that cycles were vehicles, but maybe that is right—
“in combination with a trailer, constructed or adapted for carrying one or more passengers.”
My daughter used to take her children to school sitting in a trailer on the back of a bicycle, and that would be covered by this amendment. I do not quite  see why she should not continue to do that. It was not motor-assisted, but it could have been. This needs looking at.
I think what the noble Baroness is getting at is that she does not like the look of these things. I would agree—they do not look particularly nice. The biggest problem is that many are not insured. That is a serious problem. Whether they need controlling or licensing by TfL needs a bit of debate. The black cabs obviously do not like them because they take away business. Are we in the business of protecting black cabs because they look nicer than these pedicabs that go around with not just lights flashing but some pretty horrible music coming out of them sometimes? On the other hand, are we here to regulate music and pedicabs? I do not know. The key for me is that they should have third-party insurance at the very least. Whether their fares should be controlled is a debate that is probably down to TfL to decide. Secondly, who is going to enforce this?
The other type of “vehicle”, if you can call them that, are freight cycles, which are beginning to appear in the streets of cities, London included. Sometimes they have two wheels, sometimes three or four—I do not have a clue which—but they distribute freight to outlets in the city as an alternative to trucks and vehicles, which cause a lot of pollution if they are not electric. Do we want to prevent them going around? They might be plying for hire, and the customers would be moving freight, not passengers. Whether they should be insured is debatable, because cycles are not required to be insured at the moment, and I expect we will have a debate about scooters in a couple of years’ time. But it is questionable whether a freight cycle, with or without power assistance, should be covered by this. I suggest that it should not be. This goes back to the only issue on which I think I disagree with the noble Baroness, which is insurance, because they are carrying passengers for hire. If I am carrying my family or some friends as passengers in a trailer on the back of my bike, I do not see why I should have to be insured if I do not feel like it. I think that is the same as on a bicycle.
I hope the noble Baroness will consider these issues. If she comes back on Report with a changed amendment, she should confine it to things which really matter from the safety point of view, rather than widening it to freight, family trips or something else.

Earl Attlee: My Lords, I rise briefly to support my noble friend. It is ludicrous that pedicabs are regulated in some parts of the country but not in London.

Baroness Randerson: My Lords, the noble Baroness has made a very strong point about an issue which applies only in a specific part of the country. Most of us do not have experience of this issue. As the noble Lord, Lord Berkeley, said, there is a more general trend in the use of bikes as cargo bikes—and, indeed, my own son also used to take his young children around in a little cart behind his bike. It used to worry me greatly. The girls no longer like to be reminded of it, but they seemed to think it was great fun at the time. Of course, the issue of insurance is important. It  seems to me that the point the noble Baroness has made is that there is a long-overdue need for a review of hire services—vehicles for hire—and since the use of bikes is much more common these days, we really should include them in that review.

Lord Ponsonby of Shulbrede: My Lords, I too agree that the noble Baroness made a compelling speech, with which a lot of people who live in London will have a lot of sympathy. I also agree with my noble friend Lord Berkeley, who raised the issues of cycles for freight, insurance and how the very rapid development of small electric vehicles and bicycles expanding their remit in London is a wider problem that needs to be addressed. The noble Baroness, Lady Randerson, also made that point.
As I have said to the Committee before, I sit as a magistrate in London, very often in Westminster. I remember dealing with pedicabs a number of years ago. Those offences were brought to our attention by Westminster City Council. From memory—this is a number of years ago—it was usually to do with pedicabs being parked on pavements, with the police bringing people to court through the council and impounding some vehicles. I have not seen those offences for several years now. I do not quite know what has changed—perhaps Westminster City Council does not feel it has the power to do that anymore, I do not know; it is a moving target. Nevertheless, I think the central point of the noble Baroness’s amendment is powerful.
I do not know whether there are any practical problems with harmonising the regulations with the rest of England and Wales, so I look forward to what the Minister says on that point.

Lord Sharpe of Epsom: My Lords, I am grateful to my noble friend Lady Stowell for comprehensively setting out the case for these amendments, which relate to the regulation of pedicabs. As she pointed out, Clause 66 relates to motor vehicles which are defined as “mechanically propelled”. They are the most dangerous and cause the most harm, so it is logical that they are the focus of this clause.
The noble Lords, Lord Berkeley and Lord Ponsonby, and the noble Baroness, Lady Randerson, mentioned other types of similar vehicle that might be caught by this, so it is perhaps worth mentioning what the Government are doing on cycling offences. In 2018, we held a consultation to consider cycling offences causing serious injury or death, as well as reviewing existing cycling offences. The Government feel that any new offences applicable to cyclists, with or without a trailer, are best legislated for as a package, rather than piecemeal. Moreover, we believe that there should be a separate framework of cycling offences, as compared with motoring offences, as it may not be proportionate to apply to cyclists offences intended for drivers of motor vehicles and their corresponding penalties. The response to the consultation will be published in due course—I hope before the end of this year, but early next year at the latest.
The wider question of the regulation of pedicabs, including that of noise nuisance caused by sound systems located on pedicabs—which I agree from experience can be ear-splitting—is not a straightforward  issue. In England, pedicabs generally fall under the taxi and private hire vehicle licensing regime, as various noble Lords have mentioned, in that they can be regulated as a hackney carriage—a taxi. The exception to this is London, where, as my noble friend Lady Stowell explained, they fall outside the existing taxi legislation. It should also be noted that taxi and private hire vehicle legislation is a devolved matter in Scotland and Wales, although the legislation that applies in Wales is the same as that which applies in England.
The Government are aware of the long-standing concerns that pedicabs contribute to safety and traffic-related issues in central London. The current situation in London means that there are few existing powers to control pedicab operations effectively. This has meant that pedicab operators, drivers and their vehicles are not licensed, there are no requirements for drivers to undergo criminal record or right-to-work checks, as there are in other industries, and there is no fare control. And there may very well be insurance issues, as the noble Lord, Lord Berkeley, mentioned.
The Government agree that it is in the interest of safety and fairness to passengers to fix this legal anomaly and, as my noble friend Lady Stowell noted, a Private Member’s Bill that would enable Transport for London to regulate pedicabs in London is currently being taken forward by Nickie Aiken MP—the Pedicabs (London) Bill. I am pleased to confirm that the Government intend to join the very long list pointed out by my noble friend and support this Bill. I am therefore happy to offer her a meeting with the Minister, my noble friend Lady Vere, to discuss this further, if she would like. I commend my noble friend for raising this issue. We agree that it needs to be addressed, and I hope she is reassured that the Department for Transport is on the case. For now, I hope my noble friend feels free to withdraw her amendment.

Baroness Stowell of Beeston: My Lords, I will certainly withdraw the amendment. I am grateful to my noble friend the Minister for making clear that the Government support the Private Member’s Bill, and I will of course accept the offer of a meeting with my noble friend Lady Vere—although, if it is a meeting we have to have because the Private Member’s Bill has not been successful in its Second Reading on 19 November, I hope the Minister is ready and prepared for action to take us further forward.
I am grateful to the noble Lord, Lord Pannick, for his suggestion, which I will certainly consider, if necessary, and discuss with the Government in the first instance. I would very much prefer government support if it is necessary to take this step.
I also reassure the noble Lord, Lord Berkeley, that it is certainly not my intention, nor that of my honourable friend Nickie Aiken in her Private Member’s Bill, to include the kinds of vehicles he describes—the domestic arrangement where a parent may have a small trailer on the back, with small children in it. This is about vehicles that charge passengers to transport them.
I also take on board the points made about the nature of the new ways of transporting freight using cycles within London. That is why I emphasised in my  opening remarks that, on pedicabs more generally, there was a time when there was a real effort to ban them altogether. Now we realise that, with today’s environmental challenges, there is scope for vehicles that use pedal power, as opposed to standard motorised power.
I am grateful to all noble Lords who spoke in support, and to my noble friend Lord Attlee. I hope that I do not need to come back on Report to detain your Lordships further on this but, if I have to, I will. I beg leave to withdraw the amendment.
Amendment 153 withdrawn.
Amendment 154 not moved.

Amendment 155

Lord Hope of Craighead: Moved by Lord Hope of Craighead
155: Clause 66, page 63, line 28, at end insert—“(3) A person is to be regarded as having caused a serious injury to the other person using the road or place only if it would have been obvious to a careful and competent driver that the way the person was driving at the time of the accident was likely to cause serious injury to that other person.”Member’s explanatory statementThis amendment would introduce a test for the words “causing serious injury”, which is needed as a conviction for this offence would attract a sentence of imprisonment.

Lord Hope of Craighead: In moving this amendment, to which the noble Baroness, Lady Randerson, has put her name, I will speak also to my opposition that Clause 66 stand part of the Bill, to which the noble Baroness, Lady Randerson, and the noble Lords, Lord Marks of Henley-on-Thames and Lord Pannick, have added their names.
The essence of the point I wish to raise, which is about imposing sentences of imprisonment for the consequences of an act of careless driving, was put across with great clarity by my noble and learned friend Lord Judge, in his contribution to the previous debate. But if your Lordships will forgive me, I would like to take some time to explain my position on Clause 66, as it raises important issues that affect every driver, however careful and considerate they almost always are.
Clause 66 seeks to introduce a new offence of causing serious injury by careless or inconsiderate driving. As the law stands, causing death by careless driving is a separate, distinct offence but causing serious injury by careless driving is not. That might suggest there is a gap in our law that needs to be filled. Indeed, at one time, it was thought that the fact that a serious injury had resulted from careless driving was not to be taken into account at all when the motorist was being sentenced for careless driving, but that is no longer the case. Under the current sentencing guidelines, that harm has been caused to others is now a relevant factor when a court is sentencing for careless driving, so there is, in practice, now no such gap. It seems that the issue at the heart of this debate is whether the current sentencing approach goes far enough, whether it needs to be changed, and if so, how far, and in  what respects.
The Minister in a contribution to the previous debate referred to the need for balance in sentencing. Under the current sentencing guidelines, one finds a balance. Cases are to be assessed in three categories according to the degree of culpability and the extent of the harm. A case where serious injury has been caused will be in the top category where the culpability is higher or the middle one if the culpability is lower. The maximum fine in both cases is I think £5,000. The appropriate fine level is higher for the top category, for which disqualification is possible but not mandatory, and it permits the imposition of seven to nine penalty points. Cases involving serious injury with lesser culpability, which are in the middle of the category, will attract five to six penalty points but no disqualification.
Clause 66 seeks to provide that disqualification is to be obligatory in all cases of causing serious injury by careless driving, that the upper range of penalty points be extended and that there be no limit on the fines that may be imposed. However, it also proposes that a conviction for this offence may result in imprisonment of up to 12 months if prosecuted summarily or two years if on indictment. The contrast between what the penalties are now and what they would be if this clause were to be enacted in its present form, given that serious harm is already a relevant factor under the current guidelines, is astonishing. That is why I thought it right to draw attention to the issue and to the need for the proposal to be explained and fully justified.
Careless driving is something that every competent motorist will seek to avoid but, human nature being what it is, they will not always be able to do so. Lord Diplock explained the difference between dangerous or reckless driving and careless driving in Regina v Lawrence in 1982—Appeal Cases 510. As he put it, driving is dangerous or reckless where it creates an
“obvious and serious risk of causing … injury … or … damage”.
However, he went on to explain that it is not necessary to show that a driver was conscious of the possible consequences of what he was doing for him to be guilty of driving without due care and attention. Section 3, he said,
“takes care of the kind of inattention or misjudgment to which the ordinarily careful motorist is occasionally subject without its necessarily involving any moral turpitude, although it causes inconvenience and annoyance to other users of the road.”
The noble and learned Lord, Lord Judge, gave striking examples of situations that may arise that caused that kind of situation to occur—the wasp in the car with children, for example. Lord Diplock did not mention causing injury, but I suggest that the fact that a serious injury has resulted from that kind of driving does not alter his assessment of the culpability of the offence—the nature of the offence itself. Of course, the circumstances will vary from case to case, but the offence does not necessarily involve any moral turpitude, criminal mind or wicked behaviour at all. A moment’s inattention may be enough.
The fact that the punishments now being proposed for this offence include imprisonment of up to one year if the offence is charged summarily and up to two years if it is brought under indictment is particularly  striking. That is a massive increase in the available penalties. Prisons, after all, are nasty, brutal and dangerous places. Quite rightly, imprisonment is reserved under our road traffic law for only the most serious cases where there has been a deliberate breach of the law of some gravity. This prompts me to ask a number of questions to the noble Lord. Why is such a severe penalty now being proposed for something that does not involve a deliberate breach of the road traffic law but which is mere negligence or inattention? What is the reason for this? What research has been carried out into the need for it, and what thought has been given to the consequences of imposing such a penalty for acts of mere carelessness, albeit that a serious injury has been caused?
One may take the example of the mother in the car with the wasp; something has happened because the children were alarmed and she had a moment’s inattention, and a serious injury resulted. Does a person in that situation really deserve a sentence of imprisonment, or even the severe worry of being faced with the possibility of imprisonment? After all, the imprisonment is one thing, but the fact that you are charged with an offence with a penalty of imprisonment is itself a very serious matter indeed, which is not to be taken at all lightly. I suggest that imprisonment as a punishment for such an offence on its own that is being posed here—of course, I leave aside situations where drink or drugs have been taken, which is a different situation altogether—is grossly excessive and wholly inappropriate.
The risk I fear most when I venture out on to the roads is that of accidentally hitting a cyclist. That risk increases as the days grow shorter, we have increasing hours of darkness and, let us face it, not all cyclists are very visible to people driving motor cars along the road, however careful they may be. They do not always wear Lycra and bright colours and it is sometimes extremely difficult to see them and indeed to be sure which direction they will take their cycle in as you approach them. I fear these cyclists when I see them. There are so many situations where it is not possible, despite one’s best efforts, to create the space that is needed when overtaking. You may have a bus coming towards you on the other side of the road. Of course you can slow down, as I often do, and wait for the cyclist to get to a broader place in the road, but it is not always possible to do that. One has to exercise judgment and take as much care as possible.
However, what if the worst was to happen? The cyclist has fallen off the bicycle and breaks a wrist, possibly an arm or a leg. Of course you stop, because there has been an accident resulting in injury. The police have to be called and, no doubt, an ambulance too. There is then the real possibility of a charge of causing serious injury by careless or inconsiderate driving. In a situation of that kind, almost always the driver will be blamed as the person who caused the accident—that is the way things turn out. Then there is this real prospect of a prison sentence. There is nothing in Clause 66 to tell the magistrates when that would or would not be appropriate. Is that really acceptable? Another question for the Minister: has any thought been given to what the Sentencing Council’s guidelines might be if this offence were to be introduced?
Many of your Lordships will have received an email from Cycling UK with recommendations as to how our current road traffic law should be reformed. The noble Lord, Lord Berkeley, with his amendments in an earlier group, has drawn attention to a number of its recommendations. Its interest in promoting these reforms is very obvious in view of the very real risks that cyclists undertake every day. However, I was particularly interested in its comment on Clause 66, and I hope that I have understood it correctly when I say that it suggests that there should be a greater focus on disqualification and less on imprisonment. Indeed, the noble Lord, Lord Berkeley, made that very point in his speech in an earlier group. Cycling UK suggests that the maximum sentence on summary prosecution should be reduced to six months—of course, I would say that it should not be there at all—and that account should be taken of other circumstances not mentioned here that would increase culpability. I would regard that as an improvement if one is to introduce this offence at all; you look for something else, such as taking drugs or driving without insurance or when disqualified. I do not support all that Cycling UK proposes, but there is an indication in what it is saying, which I endorse, that the Government need to think again, and much more carefully, about what needs to be done to alter the current approach to sentencing, which, as I have suggested, strikes a balance as to what is appropriate between the various degrees which may fall within the ambit of this offence.
I am the first to recognise that my Amendment 155 is not very well thought out in my attempt to introduce a qualification that would reserve these severe increases in sentencing to the most serious cases. My amendment is really saying that the punishments proposed in this clause are appropriate only where the case comes very close to being one of dangerous driving. Then there would be the moral turpitude that might justify a prison sentence. The better approach is to look at the whole package, which is why I propose that Clause 66, as it stands, should not form part of the Bill.
My main objection, as I hope I have made clear, is to imprisonment, which I suggest should not be here at all. A little more flexibility about disqualification, at least in cases prosecuted summarily, would be desirable, as would the introduction of qualifications to elevate this offence into something that comes something closer to a deliberate breach of the law rather than a mere accident or negligence. My noble and learned friend Lord Judge referred to the surgeon or employer who by negligence causes a serious injury but is not faced with a sentence of imprisonment. Why should a driver be faced with that in these cases?
There is a real issue here. It affects everybody. I also wonder whether a case of this kind, if it is caused just by careless driving, should be prosecuted on indictment at all. Should it really go to a jury? Yes, if there is more to it than that, but if it is only careless driving, I suggest that indictment is really taking  the thing too far. I hope that the Minister will be prepared to take this clause away and think again. I beg to move.

Baroness Randerson: My Lords, as the noble and learned Lord explained very effectively, Clause 66 inserts a new Section 2C into the 1988 Act, introducing a new offence of causing serious injury by careless or inconsiderate driving. The offence is committed by driving
“without due care and attention, or without reasonable consideration for other”
road users. Serious injury is defined as physical harm amounting to grievous bodily harm under the terms of the Offences Against the Person Act 1861. As the noble and learned Lord set out, the proposed penalties are two years’ imprisonment and/or a fine on indictment and a maximum penalty on summary conviction of 12 months and/or a fine.
The noble and learned Lord, Lord Hope, and I  are unashamedly having two stabs at this issue. Amendment 155 takes the narrow view, introducing a test for the words “causing serious injury”. This is needed because it will be an imprisonable offence. The Government have defined “serious injury” but not “causing”. Our amendment suggests a form of words which indicates that to be found guilty of this you have to have displayed blatant disregard for the normal rules of care on the road. It is important for us to remember that driving is the one day-to-day activity by which a law-abiding citizen can kill another law-abiding citizen through simple inattention. I expect most noble Lords are drivers and, if they search their hearts and memories, I am sure they can think of an incident in their driving history when they have done something careless—when they have failed, despite perhaps taking care, to notice a cyclist or another car. Usually that is a moment that passes without anything terrible happening, but sometimes there is an accident.
If we are going to move towards imprisoning motorists for being careless, we need to be extremely careful. Criminalising motorists is a dangerous direction. Most motorists involved in accidents which result in serious injury or death are stricken by an overwhelming sense of guilt. In many cases, it wrecks the rest of their life. Rather than needing imprisonment, they need to ensure that in future they are much better drivers. Why do we send people to prison? We send them to prison to protect society. It is not likely that we need to protect society from the normal careless driver. We need to send them to prison to punish them—to be punished for simple carelessness.
The suspicion must be that the Government are seeking to create a new offence to catch those motorists who are charged with, but not found guilty of, dangerous driving. For 20 years, I was a magistrate. It is, and was, normal for alternative charges to be brought: careless driving and dangerous driving. I well recall occasions when the CPS simply failed to prove dangerous driving for one reason or another. I believe we are in a dangerous position if we start creating new offences to cater for the failure of prosecutors to make their case. Just as there is a difference between murder and manslaughter, there is a clear difference between careless driving and dangerous driving. In opposing that the clause stand part, we are proposing that there is no need for this new offence. As an alternative, we offer Amendment 155, which provides much-needed clarity on the degree of carelessness that must be involved.
There is a tendency to a knee-jerk reliance on custodial sentences. Most drivers, even bad drivers, do not need prison to improve their behaviour. Prison costs the public purse massive amounts of money. It destroys marriages and families and the ability of the prisoner to get a job on release. It often destroys their mental health. Prisons are not called “universities of crime” for nothing; they create better criminals. Bad drivers need more appropriate sentences. Careless drivers need more appropriate sentences, such as driving bans, retraining, which is really important, community sentences, restorative justice or fines, but not prison, except in the most extreme and persistent cases.

Lord Pannick: My Lords, I have added my name to the suggestion that this clause should not stand part of the Bill. I agree entirely with what was said by my noble and learned friend Lord Hope and the noble Baroness, Lady Randerson, on the punishment of imprisonment. There is an important difference of principle between causing serious injury by dangerous driving and causing serious injury by careless or inconsiderate driving. The principle is that the offence of causing serious injury by careless or inconsiderate driving falls into the category of “There but for the grace of God, go I”. It is very difficult to see why the penalty of imprisonment should be appropriate when all the steps being taken in the criminal justice system are to recognise that we send far too many people to prison and that prison has, as the noble Baroness, Lady Randerson, eloquently said, very adverse consequences for the offender, their family and society generally. The Government need to present a most compelling justification for a proposal that more people should be sent to prison in circumstances such as this.

Earl Attlee: My Lords, I support everything that noble Lords have said so far. Unless the clause is significantly amended along the lines suggested, I could not possibly support it if it were taken to a Division.

Lord Thomas of Gresford: My Lords, as this is about causing serious injury by careless or inconsiderate driving, the state of mind—the mental element—is involved. The noble and learned Lord, Lord Hope, referred to the case of Lawrence in 1982, a decision of Lord Diplock. In that same year I was appearing before the Appellate Committee in a case called Caldwell, in which a person who was intoxicated had gone to sleep in the doorway of a hotel, lit a fire to warm himself and severely damaged the hotel. The issue was whether he was reckless in so doing. What was his state of mind, his mental element? It was agreed that he had no intent to do it but Lord Diplock held that the conviction should be upheld because an ordinary person who was not intoxicated would have realised the consequences of what he was doing, although Caldwell himself had not done so. He spent quite a long time in prison, and it took 22 years for my argument to succeed in the case of G in 2002, when Lord Bingham held that Caldwell had been wrongly decided and that the test of the mental element has to be subjective—that is, it is necessary for the person to  have a subjective understanding of what is going on. That is very similar to the issue we are discussing in this case.
However, I believe that Clause 66 is simply wrong in principle. It threatens to penalise the outcome of the offence—serious injury—with imprisonment when the mental element of the offence of careless driving is no more than negligence. I accept that there is a precedent for penalising driving offences by reference to outcomes. Clause 65, relating to causing death by dangerous driving or careless driving while under the influence of drink or drugs, has that effect, but dangerous driving and careless driving while under the influence of drink or drugs both have a far more serious mental element than simply careless driving. Dangerous driving involves falling far below the standard of a reasonable driver, and the drink or drugs offence involves deliberate impairment. In either case, the offending driver is knowingly taking a risk with the safety of other road users, so it is his mental element that is being punished in those serious cases.
On the other hand, as other noble Lords have said, careless driving involves driving that falls below the standard of care of a prudent driver—no more than carelessness, negligence or, in the terms of the clause itself, “inconsiderate” driving. A mistake, or inadvertence, may suffice. To make such an offence imprisonable because it results in serious injury is not a step that we have ever taken before, and offends against the principle that the seriousness of an offence should depend not just on the act done but on the state of mind of the offender.
Almost every accident is the result of negligent driving on the part of at least one of the drivers involved—that is, in the absence of mechanical failure or an unexpected event, such as the wasp sting that we have heard about, but such events are extremely unusual. Sadly, a vast number of accidents involve serious injury—a broken limb, for example, being “serious injury” for this purpose. The vast majority of accidents arising from negligence, whether or not they cause serious injury, do not lead to prosecutions. The clause would leave it to police and prosecuting authorities to pick out the few accidents that they wished to lead to prosecution, and would expose drivers to the risk of imprisonment for an accident that arose out of a simple mistake.
I considered whether Amendment 155 in the names of the noble and learned Lord, Lord Hope, and my noble friend Lady Randerson would address the problem with Clause 66 by redefining “careless driving” for the purposes of this offence, by referring to the foreseeability of serious injury. We are back to Caldwell: does foreseeability play any part in it? I do not think so. Not only would that introduce an intermediate standard of driving—a kind of “careless driving plus”—which would be unnecessary, but it would be unjust. When a driver emerges from a private drive or a side road into the path of an oncoming vehicle entirely by mistake and is involved in an accident, whether or not there is serious injury is just chance. It is obvious to anyone that pulling out into the road in the path of another car is likely to cause serious injury, so a conviction of a  Clause 66 offence, even as amended, would follow. Should such an offence be imprisonable? In my view, no. The only way to achieve a just result is to remove Clause 66 entirely from the Bill.

Lord Falconer of Thoroton: The noble Lord has made a very interesting speech, but is it right that negligence and the harm that it does cannot be reflected in imprisonment for any criminal offence? What is the position in relation to health and safety at work? My understanding of the law is that once someone is convicted of what is in effect negligence in relation to providing conditions at work, the court can take such matters into account—for example, if they were negligent and someone lost an eye, that would increase the penalty, and imprisonment would be a possibility. I might be wrong about that.

Lord Thomas of Gresford: That is an interesting point. Manslaughter can obviously be by negligence.

Lord Falconer of Thoroton: Gross negligence.

Lord Thomas of Gresford: Gross negligence, yes—although it is interesting that the word “gross” is put before it. But these are different offences, and it may be that I should confine my criticism to the road traffic situation and not extend it as a general principle of English law.

Lord Beith: My Lords, there have been some powerful contributions to this debate. I agree with the comments that the noble and learned Lord, Lord Hope, and my noble friends have made.
It is perhaps necessary that we should say in the debate that there are members of the public whose families have been drastically affected by serious injury resulting from careless driving who feel that there should be a stronger penalty, and that the particular circumstances in the accident with which they are familiar justify a stronger penalty. This is the simple point I want to make: the territory that we enter here is of believing that prison is the only way that society can say, “We are not going to put up with this. This is very bad. Drivers should drive better, and people should be aware of the dangers that they engage in if their concentration lapses.” Prison is probably one of the least effective ways of dealing with the individuals that we are talking about.
As my noble friend Lady Randerson pointed out, the effects of these accidents—or rather incidents, following the noble Baroness, Lady Jones—which result in serious injury are devastating for all those involved. However, the Government need to resist the constant temptation to believe that spending a lot of money on sending people to a place that will not improve their driving—or indeed anything—but is likely to lead to despair and reduce their ability to contribute to society in years to come is a sensible course of action. They should recognise that this is a misuse of the expensive, although important, resource of custody.

Lord Berkeley: My Lords, can I just ask the noble Lord, Lord Thomas, why he thinks that an offence in the transport sector might be different from  the Health and Safety at Work etc. Act? Is it because transport is a middle-class crime and health and safety is not, on the whole, or is there something different?

Lord Thomas of Gresford: Driving is an activity which is universal. Equally, the mistake—or negligence—is also universal, and I do draw that distinction. I appreciate where the noble Lord is coming from, but that is the distinction I make.

Lord Marlesford: My Lords, I very much agree with the noble and learned Lord, Lord Hope, and other noble Lords who have spoken. It seems that there is a perfectly obvious, very serious penalty which can be applied to the most egregious cases of careless driving, where there is very serious injury, and that is a lifetime ban on driving. That would be much more effective than imprisonment.

Earl Attlee: My Lords, there is an obvious difference between an offence of careless driving and a health and safety offence: the health and safety offence is ongoing—someone is operating a dangerous machine, they have not done proper risk assessments—whereas an offence of careless driving can be a momentary lapse.

Lord Judge: My Lords, I wonder whether I should say that I am not going to make a second speech polishing up my first. I apologise to my noble and learned friend Lord Hope that I got my words in before he did.

Lord Ponsonby of Shulbrede: My Lords, I have to say that I find myself in the somewhat invidious situation of supporting the Government. The Labour Party supported this clause in the other place; we agree that it fills a gap in the law and allows the high level of harm caused by these incidents to be recognised.
The debate has focused essentially on the possibility of imprisonment for careless driving, and the noble and learned Lord, Lord Hope, made it clear in his speech that that was the burden of his objection and the reason he was moving his amendment proposing that the clause do not stand part of the Bill.
The burden of the argument made by the noble Lord, Lord Thomas of Gresford, was that the mental element in the case of careless driving is no more than negligence and the noble Earl, Lord Attlee, said that that would be a momentary lapse, which would have a serious consequence. But when one looks at health and safety legislation, you can indeed have momentary lapses which have very serious consequences. Magistrates occasionally deal with health and safety legislation as well. In addition to that, as part of health and safety legislation that I have seen, it is about a more systemic approach to health and safety within the environment of the factory or whatever you are talking about. Nevertheless, there can be momentary lapses that lead to serious consequences and there is the possibility—although it may be unlikely—of a prison sentence for the director of a company who is responsible for health and safety matters.
As I introduce this, I acknowledge that I find myself in an unusual situation of supporting this element of the Government’s proposals. Nevertheless, I would  hope that it would be a very exceptional case, where there is such egregious negligence, that resulted in a prison sentence, when the vast majority of cases are momentary lapses, possibly with tragic results. I would have thought that those types of cases would not result in a prison sentence.

Earl Attlee: My Lords, the good thing is that the party opposite is being consistent, because it introduced the offence of causing death by careless driving.

Lord Wolfson of Tredegar: My Lords, the noble and learned Lord, Lord Hope, objects to Clause 66 standing part of the Bill and has tabled Amendment 155 in its place. We have had a very interesting and more wide-ranging debate than we perhaps anticipated when the amendment was put down. Thanks to the noble and learned Lord, Lord Falconer of Thoroton, we have got on to gross negligence. In the time available, it reminded me that it was Lord Cranworth in Wilson v Brett, back in 1843, who said that gross negligence is actually only
“negligence with a vituperative epithet”
attached. That is a little legal chestnut about what gross negligence actually is—in the civil context, I accept.
We need to focus on the fact that we are looking at driving offences, and I will come back later to whether it was a valid comparison put forward by the noble Lord, Lord Thomas of Gresford. The amendment we are dealing with here is perhaps the reverse of the approach taken in the earlier group to Amendment 152. Some of the speeches made in that context, such as that made by the noble and learned Lord, Lord Judge, are also applicable here. With Amendment 155, the noble and learned Lord, Lord Hope, hopes to add additional requirements, thereby raising the threshold for the new proposed offence of causing serious injury by careless driving.
As I said on the previous group, we are back to the issue of relatively low-culpability offences that can attract custodial sentences because the consequences can be catastrophic. Of course, I hear the point made by the noble and learned Lord, Lord Hope—it was a sort of “There but for the grace of God go I” point, if I can summarise it in that way—but, as I have said, there is a balance to be struck between the culpability of the driver and the harm that they cause. The Government believe that the current position—whereby a driver who by careless driving has caused serious injury, including perhaps very serious or life-changing injuries, may only be fined—is wrong. That is why we have created this new offence and why we believe it should be incorporated in the Bill.
I respectfully agree with the point made by the noble Lord, Lord Beith, that we have to have sight of, and due regard to, the consequences of the driving. If I may, I will come back a little later to the other point the noble Lord made, about whether prison is the only way to respond to that.
Having said that, we recognise that the standard of driving required for this offence is relatively low. Careless driving can sometimes amount to no more than a short period of inattention—we had the example of  the wasp on the back seat—but we do not agree with the noble and learned Lord that we need to add a requirement explaining what we mean by “causing serious injury”, or that the definition should provide that the notional “careful and competent driver” would know that their driving was likely to cause serious injury. I am grateful for the support—at least on this amendment—of the Benches opposite and of the noble Lord, Lord Ponsonby. He also asked whether prison is the right response, and I will come back to that too.
I make three substantive points in response to the proposed amendment and the clause stand part proposal. First—I will make this point relatively softly, because I think the noble and learned Lord, realistically, if I may say, accepted that there may be drafting issues with the amendment and the scope of it—it would create inconsistencies in the law and that is because this additional test would apply only to this new offence of causing serious injury by careless driving and does not, for example, apply to the offence of causing serious injury by disqualified driving, where it might be argued that the level of culpability is even lower, because there is nothing actually wrong with the driving there at all. I will come back to that in another context.
The second of my three points is that this additional requirement, to an offence based on careless driving, alters the nature of the objective test in a way that could lead to confusion with dangerous driving. That is because the proposed test is that it would have to be obvious to the notional careful and competent driver that the driving was such that it would be likely to cause serious injury. That is likely, we think, to lead to confusion, because the person who is knowingly driving in a way that is likely to cause serious injury is more likely to be considered to be driving dangerously and not only carelessly.
Thirdly, and perhaps more significantly, we do not think there is a need to add this additional test, because although the new offence sets a maximum penalty of two years imprisonment if prosecuted on indictment, that is a maximum penalty. Maximum penalties mean what they say: they are the penalty available for the worst possible case. The explanatory statement to the amendment says that the impetus behind the amendment is that a conviction for this offence would attract a sentence of imprisonment, but the court would, of course, retain discretion to impose a lesser sentence, including a non-custodial sentence, where the culpability of the driving and the harm caused do not merit a custodial term. We would trust and expect the courts to reflect the degree of culpability and to consider the consequences when they are looking at sentencing. Therefore, we do not believe that this additional requirement is necessary.
The Sentencing Council, which is obviously independent, will consider the guidelines after Parliament has considered the offence. I would point out in this regard that for the offence I mentioned earlier, that of causing serious injury by disqualified driving, the maximum sentence is four years if injury results and 10 years if death results. Let us remember that the  maximum sentence we are proposing here is two years. So we have thought about the calibration of the maximum sentence. I underline that it is a maximum sentence.
I hope that picks up the point made by the noble Lord, Lord Pannick, about custodial sentences generally. As the Committee will know, whenever anybody is sent to prison, the court has to consider, first, whether a non-custodial sentence could properly be given, and, secondly, if a non-custodial sentence cannot be given, whether the custodial sentence can be suspended. Therefore, I underline the point that this is a maximum sentence.
A number of noble Lords asked about the genesis, if I can put it that way, of the offence. We heard in our debate on a previous group of amendments about the consultation back in 2016. This offence was overwhelmingly supported by the 9,000-plus respondents to that consultation. A majority of the respondents also supported a custodial term on a maximum basis—the maximum penalty being a custodial term.
I hope that responds to the substance of points made by the noble and learned Lord, Lord Hope. As I said in the previous group, there may be points that would benefit from an on-going discussion, and I am very happy to have that with him.
At the risk of taking up time, I will spend only a minute on this; otherwise, we will never finish. It is about the point made by the noble Lord, Lord Thomas of Gresford, on R v Caldwell. It is always a wonderful thing to be able to say in the end that one was right, even if one has to wait for a future decision to say that the argument was right, so I sympathise with where the noble Lord is coming from. But I respectfully suggest that it is a misstep to start making comparisons with R v Caldwell and the mental element at all in this area. We have moved to an objective test, and mens rea is not, I think, a helpful term in this context, not least because a genuine error is something that a competent and careful driver might make. Therefore, it might not amount even to careless driving.
I hope I have not stirred the pot too much. I remember R v Caldwell and R v Cunningham from my university days. Now I know who to blame for the poor marks for the essay I wrote on it. I hope I have responded to the points made by the noble and learned Lord. I am happy to continue the discussion, but I hope that he will be able to withdraw. I see the noble Lord, Lord Pannick, moving.

Lord Pannick: With his enormous experience of various areas of the law, can the Minister think of any example of where a sentencing court has decided that it is appropriate to send someone to prison, whether in a health or safety context or in any other context, merely because of carelessness? I ask this out of genuine innocence and ignorance.

Lord Wolfson of Tredegar: I wonder whether health and safety is not, in fact, an example. This is not my area of the law, and I am reluctant to give examples from the Dispatch Box, but I think we have to balance the degree of culpability with the consequences. As the noble Lord, Lord Beith, said, and as the responses to the consultation showed, it is very difficult  to look in the eye the family of somebody who has been killed through careless driving, where the standard has fallen below that of a competent driver—not far below; that is dangerous—and say that the most we can do is fine the driver.

Lord Pannick: I understand the Minister’s argument. My question is whether there are any actual, practical examples of people being given a prison term because of carelessness. Maybe the Minister does not know. I entirely understand that. I would be grateful if he could write to me with an answer.

Lord Wolfson of Tredegar: Of course, and I will write to the noble Lord with an answer. I just want to be clear what exam question he is setting me. I assume that he is excluding recklessness. He is putting that in a separate box from mere carelessness.

Lord Pannick: I am considering the proposed offence of carelessness. To be clear, my question is whether there are practical examples of sentencing courts sending people to prison for acts of carelessness. Maybe the noble and learned Lords, Lord Judge and Lord Hope, know the answer. I do not. I suggest it may be relevant.

Lord Judge: I would much rather the Minister answered that question.

Lord Wolfson of Tredegar: The noble and learned Lord, Lord Judge, is very kind. I was going to say that, because I am standing up, I will spare the blushes of the noble and learned Lords, so that they do not have to get up. We will look at the exam question from the noble Lord, Lord Pannick. We have to be careful with our terms. It may come back to the point that I made to the noble Lord, Lord Thomas: we must be careful not to confuse “careless”, as in careless driving, with negligence. It is not necessarily the same concept.
I think I was about to sit down and allow—

Baroness Randerson: I simply wanted to add that, when the Minister writes to us, perhaps he could give due consideration to the word “inconsiderate”. One could, unusually, be sent to prison for it.

Lord Wolfson of Tredegar: I am happy to deal with that in the letter.

Earl Attlee: My Lords, on a couple of occasions, my noble friend the Minister has said that the only disposal available to the courts is a fine. Surely, disqualification is available? For most of us, that would be a very severe penalty.

Lord Wolfson of Tredegar: I accept that it may be a severe penalty. It depends who you are dealing with, and the circumstances. There are other factors which the courts have to bear in mind when considering the particular effects of disqualification on a particular driver.

Lord Hope of Craighead: I hope the Minister has sat down, because I thought it was time for me to wind up. I am very grateful to all noble Lords who have contributed to this debate.
I hope the Minister will appreciate—I think he does—that my Amendment 155 is simply an attempt. I said that it was not cleverly drafted, and he has made it clear that it has problems attached to it. The essence of my intervention is on Clause 66 and imprisonment. Disqualification is fair enough. I can see that taking people off the road meets almost every situation. The same is true with fines. It is quite remarkable that there are no other non-custodial penalties. What about other orders, such as retraining, community service, or something of that kind? They are not mentioned here. As the noble Lord, Lord Beith, pointed out, the emphasis on imprisonment as the alternative is endemic in the Government’s approach. It is seriously wrong in this situation.
Two phrases came up in the course of the discussion. The noble Lord, Lord Ponsonby, said that only in an “exceptional case” would a custodial sentence be thought appropriate; I understand that and entirely follow it, of course. The Minister said that he contemplated a “serious, life-changing injury” where he might find it difficult to look into the eye of the victim and say, “We cannot equate it to the sort of sentence that involves imprisonment. We cannot provide a custodial sentence to make up for the devastating consequences of the injury.”
The problem is that, as it stands, the clause is completely open-ended. There is absolutely no qualification to narrow down the situation described by both noble Lords. That is what I was trying to do with my Amendment 155, and is part of my complaint. If you introduce sentences of imprisonment, you really have to think about whether the nature of the offence or the circumstances that give rise to that kind of penalty should be more carefully defined. Otherwise, we are at the mercy of magistrates, who vary and may misunderstand the situation.
Of course, as I mentioned in my earlier speech, the mere threat of imprisonment is a devastating situation. I go back to example given by the noble and learned Lord, Lord Judge, of the mother in the car. Her children will ask, “Mummy, does that mean you’ll have to go to prison?” The family must live with the possibility of imprisonment and all its consequences until, eventually, the moment arises when the sentence is pronounced. Even when there is no imprisonment, the fact that this hovers over a family in that situation is devastating enough.
I hope that the Minister will think more carefully. Perhaps the noble Lord, Lord Ponsonby, will also think more carefully about his party’s approach to this problem, because there is more to it than was thought at first sight. I welcome the suggestion of ongoing discussions; I hope that, with the noble Baroness, Lady Randerson, we will be able to have a discussion with the Minister to see whether some attempt can be made to qualify the open-ended nature of this offence to make it a little less devastating.
For the time being, I beg leave to withdraw the amendment.
Amendment 155 withdrawn.
Clauses 66 and 67 agreed.
Schedule 7 agreed.

  
Clause 68: Courses offered as alternative to prosecution: fees etc

Amendment 156

Lord Tope: Moved by Lord Tope
156: Clause 68, page 65, line 9, at end insert—“(c) a local authority or traffic authority;”

Lord Tope: My Lords, in moving Amendment 156, I will also speak to Amendment 163.
First, I must declare my interest, particularly for these amendments. I am the co-president of London Councils, the body that represents all 32 London boroughs and the City of London Corporation. I am also a vice-president of the Local Government Association.
Amendment 163 is the substantive amendment. It seeks to start the legislative process that would enable London borough councils and/or Transport for London to enforce speed limits of 30 mph or below—I have in mind the 20 mph speed limits in particular—on roads for which they have responsibility and, if they so wish, to apply to the Secretary of State and receive consent.
This proposed measure has the support of all 32 London boroughs, and thus the support of all three political parties governing in London and, of course, of the City of London, which has no party-political control. Personally, I believe that this measure should apply to the whole country, but this proposal has come particularly from the London boroughs, where perhaps we have a greater intensity of 20 mph speed zones and 20 mph limits than other cities have yet.
London and many other cities are seeking to achieve zero road deaths and serious injuries—none at all—by 2041. Speed has been highlighted as a major factor in contributing to serious injury and deaths on roads, and many London boroughs have introduced 20 mph speed limits on some of their roads. Indeed, some boroughs have designated all their borough roads 20 mph speed zones.
These lower speed limits are generally very popular with local residents, and there is some evidence that they have some effect on speed, but not nearly as much as they should. The main reason for that is that there is little enforcement. Those drivers minded to drive too fast know that there is very little likelihood that they will be caught. According to TfL speeding data, in 2019-20 on all roads across the whole of London, 214,409 speeding offences were detected that led to enforcement action. On first hearing, that might sound quite a lot but, actually, set against the 2.5 billion car journeys in London alone each year, it represents an enforcement level of just 0.0086%. That is not a criticism of the police: there are some excellent examples in London and, I am sure, all over the country, of the police working closely with local authorities and local residents on speed enforcement in 20 mph zones. However, police resources are very stretched and they rightly have other priorities. Indeed, it would not improve the image of the Metropolitan Police at all if the force spent more of its time visibly enforcing low speed limits rather than doing many other things for which it is currently being criticised.
If the Government share the objective to achieve a significant reduction in deaths and serious injuries on the roads of our cities, they must give local authorities the tools they need to carry out effective civil enforcement. I stress the word “effective”: it is vital that civil enforcement is not seen as reducing the seriousness of speeding offences or the severity of the penalties. That means retaining the penalties, including penalty-charge notices, points on licences, speed-awareness courses and so on. I recognise that the thought of local authorities becoming involved with such an emotive issue as driving licences, penalty points and endorsements raises concerns, not least for local authorities themselves.
I made my first speech from the Front Bench in this House on 11 January 1995 on the subject of parking in London. After a long campaign at that time, London boroughs had just taken over responsibility for parking enforcement in London from the Metropolitan Police. Believe me, parking in London can be just as emotive as speeding in London. I was then the only leader of a London borough council eligible to speak in your Lordships’ House, and I learned in that first speech from the Front Bench just what it must be like when Ministers have to defend what most of us think of as the indefensible. Therefore, I understand the position, but I can only repeat what I said in that debate: it made sense that local authorities, which had to implement the restrictions, should also have the power and the responsibility to enforce those restrictions. The same applies with low-speed roads and zones.
There is not time in this short debate—I am not a lawyer—to deal properly with all the concerns, but let me refer briefly to two of them, frequently mentioned. The first is legal scrutiny; the other is money.
With regard to legal scrutiny, I would argue that the current civil procedures are more robust than those under the criminal system. For instance, under civil enforcement, the driver has the benefit of an internal council or TfL appeals process and the ability to appeal to an independent legal adjudication service. At present, the criminal process takes up valuable court time and is resource intensive.
The other argument so often heard is that it would be a cash cow for local authorities to milk the motorist—the same argument that is so often made about parking. First, we should remember that, in this case, motorists will be paying the fine only because they were caught breaking the law by speeding and possibly endangering the lives of others. Such drivers are not the victims. As with parking, income from speeding enforcement will not go into a council’s general coffers. By law, it must be used for transport-related purposes, in this instance particularly to meet the costs of more effective speed enforcement.
I recognise that this raises some complex and controversial issues, but the objective is simple and demanding: to reduce deaths and injuries on our roads, particularly our urban roads, through more effective speeding enforcement. I ask the Minister whether the Government share that objective—as I am sure he must do. If they do, will he commit to working with London Councils and others to bring it about? I beg to move.

Lord Berkeley: My Lords, I have put my name to this amendment, because it is a really useful proposal from London Councils. The noble Lord, Lord Tope, has well outlined the purpose and the benefits. The idea of a target of zero road deaths—I think that Sweden has a target going back 20 years—is a really important thing to go for in London.
Noble Lords will have seen the changes that have happened in London and other places because of the Covid epidemic. A couple of years ago, London provided much better cycle lanes and reduced some car widths and, in the process, reduced speeds. As someone who cycles around London all the time, I welcome that personally. Hackney, which was one of the first boroughs to go for this, is a pleasant place to pedal around now. It is key that this is done on as great a devolved basis as possible. Devolving it to the London councils seems an excellent idea; I am absolutely persuaded that they are capable of doing it.
The noble Lord, Lord Tope, touched on the £445 million of revenue generated by parking fines in London alone. The RAC Foundation appears to criticise this as milking the motorist but, as the noble Lord said, those people have contravened a regulation so we should not have any sympathy for them. If they had obeyed the regulation, be it on parking or speeding or whatever else, they would not have deserved to be fined. If they do not like being fined, it is quite simple: they should obey the legislation. I look forward to hearing what the Minister has got to say on this but it would be a first step in devolving some of these issues, which should be decided locally. If it is successful, it needs to go to other cities as well.

Lord Sandhurst: My Lords, I support these amendments. I do so as a resident and ratepayer of the London Borough of Wandsworth; I declare that interest. I was encouraged to speak in this debate and support these amendments by the Conservative leader of that borough. He believes that they are desirable and will be beneficial to the residents of his borough, and he will be answerable to his electorate in due course.
In short, these amendments will, subject to the Secretary of State’s approval, enable but not oblige a borough to take up powers over speeding restrictions and traffic light contraventions. The aim is very simple: to stop people speeding. Because the boroughs anticipate that taking over the management of speed enforcement will create something of a virtuous circle, they will be more energetic about it than the police are. They will enforce speed limits because they have a financial stake in it directly and, because they enforce it and recover the costs, they will have to recycle the money they get in highway improvements, traffic calming and road safety generally.
What is there not to like about that? It will benefit residents and road users. Better enforcement will bring down speeds on residential roads. Lower speeds reduce the level of pollution and particulates. Better enforcement by boroughs will make residential roads safer for pedestrians and cyclists. It is a commonplace that an accident at 30 mph can kill; a pedestrian hit at 20 mph or less has a much more viable chance of survival without even serious injury. So, if these amendments  are accepted, there will be immediate health and safety benefit to residents in any borough that chooses to adopt them.
Giving boroughs control over speeding and traffic lights is simply a no-brainer. I stress that boroughs will not be compelled to adopt these powers; it will be for each borough to do so when the time is ripe and it is in a position to carry them out. In summary, these amendments will bring great benefit to the citizens of London.

Lord St John of Bletso: My Lords, I am afraid that I take a converse view on this. London has a massive problem with increasing traffic congestion, and I do not believe that reducing the speed limit to 30 mph is going to bring the death rate down to zero. On the converse, one of the biggest problems in London is pedestrians crossing the road more transfixed on their mobile telephones than on watching oncoming traffic. I am not opposing this amendment; I am just saying that reducing the speed limit will not necessarily bring the death rate down to zero.

Baroness Hamwee: My Lords, I do not think that my noble friend is proposing to reduce the speed limit. It is about enforcement of whatever the speed limit is.

Baroness Randerson: My Lords, this is a very ambitious amendment from my noble friend. It would involve significant changes to the role of local authorities. Before people say that that is not appropriate, it is worth bearing in mind that local authorities already deal with parking issues, which are in the minds of the general public, very akin to the issue of speeding offences. They also have powers, in London and in my city of Cardiff, to deal with certain moving traffic offences, such as entering yellow boxes, driving in bus lanes and so on. It actually does not make local authorities any more popular, so it is important that it is thought through carefully.
A driver, in a situation where the local authority is enforcing the rules, could find themselves disqualified from driving under the totting-up procedure. That happening in a civil court is clearly something that would have to be thought through, because it would change pretty fundamentally the relationship between many drivers and their local authority. It is typical of the topics that the Government need to address as part of an overall review of road traffic offences, their enforcement and the calibration of penalties for those offences in the modern world. I look forward to the Minister’s response.

Lord Rosser: My Lords, like the noble Baroness, Lady Randerson, I do not intend to stand here and announce our 100% support for what is proposed. We are interested in the issues raised and certainly look forward to the Government’s reply. To state the obvious, I say that local councils are key partners and innovators in improving road safety and encouraging the use of different modes of transport. What is proposed is quite a major step forward from that.
I will add one point, to which the answer may well be that the solution is obvious. Simply, if we end up with new powers or duties in this area being granted to local authorities, they must be accompanied by funding. The reply may be, “Well, of course they’ll get the money, because they’ll get it from any fines they might impose”, but it may not be quite as straightforward as that. Making such a move might put a bigger burden and workload on local authorities than might be envisaged. If people are thinking of going down this road, they should make sure that, from whatever source it may be coming, the funding is available.
As I recollect, the Government have plans, for which local authorities have been waiting a little while, to increase local authority powers to manage local roads, under the Traffic Management Act 2004. If I am right, will the Minister give us an update on where we stand on that and what kind of issues the Government are considering as part of any such plans? As part of that, have the Government looked at the issue of speeding enforcement—as suggested in these amendments—at local authority level when looking at any planned increases to local authority powers in this area? As I said at the beginning, we are interested in the issues raised by these amendments and look forward to hearing the Government’s response.

Lord Paddick: I apologise to the Committee: I was not going to say anything, but I could not resist. There is clearly an issue with people receiving endorsements on driving licences and potentially being disqualified from driving not being dealt with in the criminal courts and through the appeal process that they provide. On the issue around lack of enforcement, does the Minister have any information about the potential use of speed cameras in 20 miles per hour zones to increase enforcement and to what extent speed cameras are self-financing, in terms of the money they generate versus the cost of running them?

Lord Sharpe of Epsom: I thank noble Lords for taking part in this short but very interesting debate. As the noble Lord, Lord Tope, has explained, Amendment 163 would afford local authorities greater powers in managing speed and traffic light offence enforcement on their roads. I take it that Amendment 156 then seeks to extend the National Driver Offender Retraining Scheme so that it also can be operated by local authorities in respect of decriminalised offences.
The most dangerous traffic offences are punishable by either immediate disqualification from driving—as with drink and drug driving—or endorsement. I am sure that noble Lords agree that, because of their seriousness, none of these offences has been decriminalised and nor should they be—a point that the noble Baroness, Lady Randerson, alluded to. The purpose of endorsements is to disqualify from driving people who show repeated dangerous behaviour and pose a threat to other road users, through the process of totting up penalty points, which of course is a key distinguishing feature of parking fines.
I remind noble Lords that speed offences are one of the types of offence referred to as the fatal four, along with mobile phone use while driving, not wearing a seat belt, and drink and drug-driving. Speed offences  share a common feature with these other offences: they are prominent in the causation of fatal and serious collisions. We could not accept a situation where there were some speed limits that the police had no power to enforce.
Likewise, contravening a red traffic light can lead to serious and fatal collisions and that should not be decriminalised either. Traffic lights are provided to manage safety concerns at junctions, and offer safer places for people to cross the road. We have a good compliance record with red traffic lights in this country, and decriminalising enforcement would be likely to undermine that. That would impinge on the safety of all road users, but particularly vulnerable road users, including pedestrians and cyclists.
The Government are concerned that enforcement of civil penalties is not subject to the same rigorous scrutiny as criminal enforcement, and this would affect public confidence and their level of support. In particular, it would be likely to set back the growing public acceptance of speed and red light cameras. The public strongly agree that speed cameras save lives and are not there to make money. That is clearly demonstrated in the findings of the Department for Transport’s 2020 National Travel Attitudes Study, which showed that 59% of respondents agreed with the statement that speed cameras saved lives and only 41% agreed with the statement that they were mostly there to make money. Those figures are an improvement on those of 2011, when the equivalent numbers were 51% and 55% respectively. The Government, therefore, have no intention of decriminalising any of these offences: we believe that doing so would wrongly signal to the public that these dangerous behaviours had become less important.
Furthermore, the police are the primary enforcers of criminal offences, and have so far been responsible for delivering speeding courses. The National Driver Offender Retraining Scheme is run by UK Road Offender Education, a subsidiary of the Road Safety Trust, which is owned by the 43 police forces. This provides central governance, standards and consistency. UK Road Offender Education works with leading experts in road user behaviour to develop, review and deliver high-quality behaviour change courses—and I can personally attest that they work.
The scheme works alongside PentiP, the national Home Office fixed penalty processing system that is used by all police forces in England and Wales. This ensures that a repeat offender is not offered a second course within three years but is instead offered a fixed penalty notice and penalty points, otherwise court proceedings follow. We are not aware of a strong need to allow local or traffic authorities to charge for speeding courses, and there is a lack of evidence for the benefits, or indeed consequences, of doing so.
Unfortunately I cannot give the noble Lord, Lord Rosser, the update that he seeks, but I will write to him. I am afraid that also goes for the question from the noble Lord, Lord Paddick: I will write to him too. Given my answer, however, I hope that the noble Lord, Lord Tope, will see fit to withdraw his amendment.

Lord Tope: My Lords, I am grateful to the Minister, particularly for revealing how close he came to a criminal conviction on this. The fact remains, whether we like it or not, and generally the public do like it, that there are 20 mph speed limits not just all over London but all over the country, which are by and large not enforced, and drivers know it. Their being disregarded in such a way brings the law into ridicule. As I said in my opening comments, I accept that we have an issue here. I have discussed it with my noble friend Lord Paddick, who I first had discussions with when he was borough commander in Lambeth and I was chair of the Metropolitan Police Authority’s finance committee, when he told me Lambeth was not sufficiently resourced.
These issues must be tackled. We cannot go on with a lot of 20 mph speed limits which most motorists take no notice of, and absurd and ludicrous enforcement rates. I said this is the start of a process; I hope the Government will engage in debate and conversation about how to tackle this, and work with London borough councils and others—as this is a nationwide issue—to see how we can better solve this problem. We do not want this to be batted back and forth like the parking debate in London 30 years ago, when the Met believed they would be severely disabled if they were not enforcing parking in London. I bet they would not say that now. If we asked the Met to take back responsibility for parking in London, your Lordships know what the reaction would be.
I will withdraw my amendment, but this debate will not go away. I hope that the Government, local authorities and others engage in positive thinking about how we solve this and make local authorities, which are by and large responsible for getting the 20 mph speed limits introduced, responsible—I stress the word—for their enforcement too. I beg leave to withdraw the amendment.
Amendment 156 withdrawn.
Clause 68 agreed.
Clauses 69 to 74 agreed.
Schedule 8 agreed.
Clause 75 agreed.
Schedule 9 agreed.
Clause 76 agreed.
House resumed. Committee to begin again not before 8.28 pm.

Covid-19 Vaccinations
 - Statement

The following Statement was made in the House of Commons on Thursday 4 November.
“With permission, Mr Speaker, I will update the House on our Covid-19 vaccination programme.
It is less than a year since Margaret Keenan made history by becoming the first person in the world to receive a Covid-19 vaccination outside a clinical trial. Since then, we have been leading the world with our vaccination rollout. We should all take huge pride in the progress that we have made. We have now delivered  more than 100 million doses across the UK, including more than 50 million first doses, more than 45 million second doses, and more than 8 million booster and third doses. The UK Health Security Agency estimates that our jabs have prevented more than 24 million infections and more than 127,000 deaths.
Winter is always a challenging time for the NHS, but this year it is even more so, with more indoor mixing, the circulation of flu, and a new risk of more Covid-19 variants.
We must continue to do everything we can to protect ourselves, our loved ones, and our NHS. The vaccine rollout is our best defence against the virus, and it remains the Government’s top priority. While more than 90% of adults across the United Kingdom have received their first dose, about 5 million adults are yet to come forward, but it is never too late to come forward, and we will continue to help everyone to get their jabs so that no one is left behind.
Data published last week by the Office for National Statistics shows that the risk of dying from Covid is 32 times greater in unvaccinated people than in fully vaccinated people. That only underlines what we already knew—the critical importance of vaccination—and we are committed to making getting booster jabs as easy as possible. More than 2,400 vaccine sites are now in operation across England, and people can access a vaccination via a walk-in site or book an appointment regardless of whether they have an NHS number. We recognise that the chance to book a jab early, even before the eligibility date, has the potential to drive up bookings for boosters, and we are considering that carefully.
We will not ease up on vaccine uptake, and will continue to work with clinicians, social media platforms, local authorities, faith groups and businesses—indeed, with anyone who can communicate the benefits of vaccination. We have funded community champions across the country to work with local leaders and communities to encourage people to come forward.
We have also accelerated our vaccination programme for children and young people. All those aged 12 to 15 can now get their vaccinations at school, or by booking an appointment via the national booking service. More than 200 sites are now available for appointments outside school, and school-age immunisation teams have visited more than 2,500 schools in England so far, with 800 more due to be visited next week. I am delighted that more than 650,000 12 to 15 year-olds have been vaccinated since the programme was launched in September.
We are also rapidly rolling out our booster programme to give people the best protection over the winter and help to reduce pressure on the NHS. Although our vaccines give powerful protection, we know that the levels of protection offered by a Covid-19 vaccine fall over time—particularly in older people, who are at greater risk from the virus—and even a small reduction in protection can have a significant impact on hospital admissions. The goal of the booster programme is to top up that protection. More than 8 million people across the UK have now received the vital protection that a booster dose provides. Our brilliant NHS is  delivering the biggest vaccination programme in NHS history, administering hundreds of thousands of booster jabs every day, and the pace has been accelerating rapidly, with a record 1.6 million jabs in England last week alone. A further 2.2 million invitations are going out this week.
Doctors, nurses, pharmacists and volunteers up and down the country are playing their part in delivering jabs to protect the country against the virus. GPs in particular continue to be the bedrock of the vaccine programme, delivering more than 70% of all vaccinations so far, and I know that the whole country is grateful for their tireless work throughout the pandemic.
The most important thing that everyone can do to protect themselves, their family and the freedoms for which we have fought so hard is to get their jab and, if they are eligible, their booster dose. We are making it easier than ever to get protected, so please come forward.
People eligible for their booster can already use the NHS online walk-in finder to find the most convenient site to get their top-up without an appointment. There are hundreds of walk-in sites across the country. We have also updated our guidance to make it clear that Covid-19 boosters can be given slightly earlier to those at highest risk, where it makes sense operationally. For example, we are allowing care home residents who may have received their second dose at different times to be vaccinated in the same session when the vaccination team are in the home, as long as they have passed the five-month mark.
Covid-19 is not our only adversary this winter. We are also facing the threat of flu, which even before this pandemic placed a great strain on the NHS at this time of year. Last season, we saw extremely low influenza activity levels globally and as a result, we may see lower levels of population immunity against the flu and more strains in circulation this winter. To combat this, a record 35 million people are eligible for a free flu jab this year, and this provides us with another way that we can keep our country safe.
Finally, it is not just in vaccinations that records are being set. I am delighted to confirm that today we have become the first country in the world to approve an antiviral for Covid-19 that can be taken at home. In clinical trials, molnupiravir has been shown to reduce the risk of hospitalisation or death for Covid-19 patients who are most at risk by 50%. This treatment has gone through a rigorous assessment for the highest standards of safety by the Medicines and Healthcare products Regulatory Agency. We are now working across government and the NHS to urgently get this treatment to patients, initially through a national study so that we can collect more data on how antivirals work in a mostly vaccinated population. I urge everyone to get their Covid and flu jabs as soon as they are eligible, in order to protect themselves, their loved ones, and the extraordinary progress that we have made together. I commend this Statement to the House.”

Baroness Thornton: I start by thanking the Minister for taking the Statement. I very much welcome the new antiviral, molnupiravir—another name we all  have to learn—as a significant drug in our armoury in the fight against Covid. I think this might be my and the Minister’s first Covid Statement since he was appointed, though we have done several Questions. I thought it might be useful to remember the last 18 months for a moment, when his predecessor and the House dealt with, on average, two Statements and several Questions about Covid a week.
Let us be quite clear: the NHS and social care services have saved the country, and they continue to do so as we move into winter. I again place on record my gratitude from these Benches to the NHS, social care services and all the staff from the top to the bottom of our health service who have worked so hard to save lives, protect the vulnerable and roll out vaccines. But we should remind ourselves that 142,000 people have died from Covid in the UK so far, and 1,173 died last week. We have the highest, or one of the highest, infection rates in Europe. This is not over by a long way, and we are now moving into the winter. Frankly, one has to question whether the Government have a handle on Covid going into the busiest season for our NHS.
The Government must get a grip on the stalling vaccination programme. The Health Secretary, Sajid Javid, is calling on younger relatives to help their eligible parents and grandparents take up the offer of the booster and the flu vaccine. Older and vulnerable people have been urged to get their Covid-19 booster jabs as part of a “national mission” to help avoid a return to Covid restrictions over Christmas. The Health Secretary said:
“If we all come together and play our part”,
the country can
“avoid a return to restrictions, and enjoy Christmas.”
That is a bit late, and it is absolutely in line with this Government’s handling of the pandemic—about two to three weeks later than they need to be. It is a bit rich for the Secretary of State to line up who is to blame if we do need further restrictions at Christmas because the Government have failed to get everyone vaccinated who needs to be.
I ask the Minister specifically about immuno- compromised patients. In September, the JCVI recommended that severely immunosuppressed patients have a third primary dose prior to having their booster jab to maximise their protection. There has been a lack of clarity about whether and when this would happen, which has caused huge confusion among a very vulnerable group in our communities. It is estimated that between 400,000 and 500,000 people fall into this category and are entitled to both a third primary jab and a booster. These two things are not interchangeable. Can the Minister tell the House how many of this group have received a third primary jab, and how many are going on to have a booster? How many are missing out on potentially life-saving doses of Covid vaccines after confusion about who is eligible for a third dose followed by an additional booster jab?
The blood cancer charity Myeloma UK said its helpline has been inundated with hundreds of inquiries in recent months from patients who are struggling to book their third and fourth doses. To compound this challenge, patients like this cannot turn up at a walk-in  or mass vaccination centre. What plans are there to ensure that the immunosuppressed receive the vaccinations they need?
More generally, local residents are contacting their MPs to say that they cannot get the boosters they so desperately want. One lady in her 70s with an underlying health condition went to her pharmacy and called 119, just to be told that she was not eligible for her booster—but she knew she was. She finally has one booked in December, but she had to rely on her daughter to book the appointment because she does not use the internet. The system simply is not working for many of those who need it most, because they do not have access to the internet or the new technology the Government want them to use to get their boosters.
Turning to care home residents and booster vaccinations, 1 November was the Government’s target for getting care home residents their booster jab. Could the Minister tell the House what proportion of care home residents have been vaccinated so far? My honourable friend Dr Allin-Khan said in the Commons on Thursday that only about a quarter of care home residents in Leicester have had their booster. The former Secretary of State is now calling for all NHS staff to be compulsorily vaccinated. Is this government policy? If so, what is the timetable? Is it wise to force this through right now when the NHS has a vacancy rate of 100,000?
Finally, plan B, which contains measures that we on these Benches already support, such as mask wearing and allowing working from home, is simply not enough on its own. Yes, we support it, but we must turbocharge vaccine boosters, fix sick pay, and improve ventilation. Does the Minister agree?

Baroness Brinton: My Lords, from these Benches, we add our thanks to all those involved in the current delivery of vaccinations, whether they are GPs, nurses, healthcare assistants or volunteers at vaccination centres, and we thank more broadly our NHS and care-sector staff who are still working extremely hard to reduce the backlog of cases while coping with over 9,000 patients currently in hospital with Covid.
The Minister knows that the Delta variant and its subvariant, which is thought to be behind the growth of cases in the west country and Wales, remains highly transmissible. Doctors are reporting daily that double-jabbed patients are catching Covid and passing it on. Why have none of the mitigations in plan B been carried out? Many scientists, including some members of SAGE and Independent SAGE, believe that we should be operating them now to reduce the high numbers of cases and not be faced with a second Christmas being cancelled by the Prime Minister at short notice.
From these Benches, we have asked time and again for the wearing of facemasks inside and on public transport, as well as room ventilation in schools and other public venues, to be mandated, and for social distancing to remain. There are now, on average, 35,000 new cases daily, a shockingly high number. Professor Peter Openshaw, the chair of NERVTAG, said today that it was clear that immunity from the vaccines is  waning. Yes, and vaccination is vital, but with cases at this level why are the Government not making mask mandates and social distancing formal?
Today, the Prime Minister once again reminded people to get their jab, whether first, second, third or booster, the ONS data showing that the risk of dying from Covid is 32 times greater in unvaccinated people. Can the Minister tell us why last week it was announced that vaccination centres are now closing at 6pm? Surely it should be easy for people to get vaccinated at a time that works for them, when they leave for work or get home from work?
The last time we spoke about Covid, I asked the Minister what the Government were doing to prevent some of the very unpleasant anti-vaxxer interventions at school gates and outside some vaccine centres. Has any action been taken on their disgraceful leaflets, which deliberately look like an NHS document but are full of direct lies and mistruths? It is important, because, by the Minister’s own numbers in this Statement, only 22% of 12 to 15-year olds have had their vaccination so far. I think Ministers now recognise that cases in this age group are driving cases in the older age groups, which is probably why hospital numbers are going up.
The noble Baroness, Lady Thornton, referred to the muddle between booster and third doses. The pandemic is far from over for immunocompromised and immunosuppressed people. I declare my interest as one of the clinically extremely vulnerable, as I have said before. I discovered by chance, reading something online, that I am now in the third-dose category. My GP did not know it and I certainly did not know it either. That is the problem. GPs and vaccination centres have not been told about the distinction. I have read the NHS guidance on the third dose, but many other clinically extremely vulnerable people are saying that their surgery or vaccination centre does not understand which category they fall into.
This is not helped by the problems with the online form which I asked the Minister about last week. Does the online form now specify the third dose, which is for around 800,000 people, according to current estimates, not for 400,000 people, as the noble Baroness, Lady Thornton, said, as distinct from the booster, which is for around 20 million? It is important, because the third-dose patients must have a booster in a further few months. If the system is not even recording the third dose, how will it know to call them back?
With the end of the shielding programme on 17 September, Sajid Javid wrote to all those on the patients’ list to inform them that it had finished, that the Government would no longer be offering specific advice and that we should go to our hospital clinicians. But many of us do not have an appointment in the diary, and there is not likely to be one because our clinicians are catching up with the backlog of cases, and those who are specialists in immune diseases are working on the Covid wards as well. So can the Minister say how on earth the clinically extremely vulnerable are meant to know what to do in the meantime?
Will the Minister ensure that the Government will work with patient organisations, clinicians and employer to produce clear and meaningful guidance that promotes  safe working practices for this group and, in particular, let employers know that they have to help employees either to work from home or, if they have to go in, to make sure they do not have to go in by train or bus at peak hours? Please will the Government appoint a dedicated national lead to co-ordinate the support and guidance available to people in this group?
The news in the Statement of the approval of the Merck and Ridgeback antiviral Molnupiravir is also good news. I see that just under half a million courses of doses have been ordered. It was good to hear on Saturday of the success of the Pfizer clinical trials elsewhere, but I gather we are some way off from that being approved, because further trials of people who are clinically vulnerable are needed. Can the Minister tell the House the likely timescales of the actual delivery of both these different antivirals?
Finally, I am aware that I have asked some technical questions. If the Minister cannot answer them today, please will he write to me with the answers?

Lord Kamall: I thank the noble Baronesses for their questions and for raising some very important points, on which I and others have been in discussion not only with health professionals but with departments and other advisers. I will try to answer their questions in detail. The ones that I do not answer because of their technical nature—as the noble Baroness, Lady Brinton, acknowledges—I will try to answer later if I am unable to answer now.
First, I join the noble Baronesses, Lady Thornton and Lady Brinton, in praising our wonderful doctors, nurses and other healthcare staff. Also, we should not forget all the wonderful people who have supported them: the delivery staff who brought stuff to their homes and delivered food, and the local civil society projects. We saw a massive upsurge in voluntary work and volunteerism. Whatever our politics, whatever part of the spectrum we are on—whether we call it co-operative socialism, local libertarianism, community conservatism, or just humanity and people helping each other—I thought it was a wonderful expression of what we can do when we all pull together.
We also have to remember, as the noble Baronesses, Lady Thornton and Lady Brinton, reminded us, that this is not over. That is one of the reasons why the Secretary of State felt it was important to make this Statement and this point. There has been a level of complacency in encouraging people to come forward. We have not been strong enough, which is why we are pushing now and emphasising the fact that we want as many people as possible to come forward and get the booster. It was announced over the weekend that it is not necessary to wait for six months after the second dose; people can book from five months. In fact, today I tested the system and took advantage of it and was able to book my booster. I hope many others will be able to do so to.
I would ask noble Lords across the House that if anyone comes to them with experiences of not being able to use the service—we have had a couple of reports of a few technical hitches—please let me know so that I can pass them on to NHSX, so that we make  sure that we are aware of problems as soon as possible. So far—I want to try to touch some wood somewhere—it seems to be working.
Let me now turn to some of the detailed questions that I was asked by the noble Baronesses. The JCVI has advised that people with severe immunosuppression at or around the time of their first or second vaccination receive a third primary dose as a precautionary measure. Some individuals who are severely immunosuppressed due to underlying health conditions or medical treatment may not achieve the same full immune response to the initial two-dose Covid-19 vaccine course. The third dose aims to bring them up to nearer the level of immunity. As with the vaccination of other at-risk individuals, eligible individuals will be identified and invited by the hospital where they receive care under a consultant and/or GPs.
If either of the noble Baronesses or any noble Lord here today is aware of that not happening, please let me know so that I can make sure that we push on this. I am told that the NHS is writing to all patients who may be eligible so that they can talk through their options with their GP or consultant if they have not done so already. Any patients who have not yet been contacted but think they may be eligible, for example because they have previously been advised to shield, can contact their consultant for an update. If noble Lords know of any problems or are aware of any issues, I hope that they will let me know as soon as possible so that I can chase on them.
On the booster, while there are many stories saying that we have not done that well, we have 12% booster vaccination. When we look at booster vaccination in other European countries, the highest is Israel with 45%, but Spain is at 2%, Italy is at 3%, France is at 4% and Germany is at 2%. This is why we are emphasising the importance of booster vaccinations. My right honourable friend the Secretary of State and others are keen to push people to make sure that they have their booster as soon as possible. It is the best defence against Covid and it is important, especially as protection wanes, that people are getting their boosters.
On plan B, I repeat what has been said previously: there is no set threshold. We consider a range of evidence and data, as we have done throughout the pandemic, to avoid the risk of placing unsustainable pressure on the NHS. For example, while the number of Covid-19 patients in hospitals is an important factor, the interaction with other indicators, such as the rate of increase of hospitalisations and the ratio of cases to hospitalisations, will also be vital.
The Government monitor and consider a wide range of Covid-19 health data. I shall go into some of them in a bit of detail. We look at cases, immunity, the ratio of cases to hospitalisations, the proportion of admissions due to infections, the rate of growth in cases and hospital admissions in the over-65s, vaccine efficacy and the global distribution and characteristics of variants of concern. We also look at the risk to the NHS. One of the issues, as many noble Lords will know, is about making sure that the NHS is not overwhelmed. In assessing the risks to the NHS, the key metrics include hospital occupancy for Covid-19 and non-Covid-19 patients, intensive care unit capacity, admissions in  vaccinated individuals and the rate of growth in admissions. The Government also track the economic and societal impact of the virus to ensure that any response takes into account those wider effects.
On some of the measures that are being proposed in the potential plan B, clearly a number of people with other health conditions, including mental health conditions, would be incredibly concerned were we to go to some of the more severe measures under plan B. We always have to balance them up. As noble Lords will be aware, questions have been asked about those awaiting elective surgery and the unintended consequences of focusing on Covid-19, for example whether it has led to a disproportionate number of deaths from other diseases or conditions.
Covid booster jabs have been delivered or booked in almost nine in 10 care homes as the NHS vaccination programme accelerates ahead of winter. Around 6,000 care homes have already been visited, while a further 3,700 homes have visits scheduled in the coming days and weeks. The new figures also show that residents in more than half of care homes have received their booster jab. When I asked about the discrepancies in the small proportion that have not yet been booked or vaccinated, I was told that there may well be cases of Covid in those care homes and they are waiting for the delay after the positive test to ensure that it is safe to go there.
I was asked about the breakdown of different types of care home. Based on the latest CQC annual report on care, we can say that the CQC inspects a number of these care homes.
To answer some of the other questions, as I said, the NHS is writing to all patients who may be eligible so that they can talk through their options. On the issue of whether to make NHS staff take their vaccinations, we have consulted on vaccination as a condition of employment in wider health and social care; I am told that my right honourable friend the Secretary of State will set out the position very shortly. The important thing to remember is that we want people to take the booster, and we want to make sure that we reach those communities and demographics who have not had even their first or second vaccine yet.
I have had a number of conversations with noble Lords from across the House—I thank them for their advice and suggestions—about how to reach out to some of these communities. For example, I was in conversation with one right reverend Prelate about how we could work in conjunction with interfaith communities in local communities, for example in certain parts of London where there is a low uptake. Sometimes people may not be of faith, but they respect faith leaders—vicars, imams, priests et cetera. We are looking at how we can work on this, and I very much hope that we will be able to roll that programme out further. If any noble Lords are interested in or have any suggestions on that area, I would welcome them.
I apologise if there are technical questions that I have not answered; I will make sure that I write to noble Lords.

Lord Pannick: The Minister mentioned the importance of the booster dose. Can he explain why the valuable NHS app does not prominently display that the individual has received a booster jab, as is the case with the first two doses? The information is hidden away on the app and cannot be downloaded. This is a serious defect because some foreign countries—the Minister mentioned Israel, which is one example—now require proof of a jab in the past six months, given the waning effect of earlier doses. There are many domestic contexts where the ability to prove easily that you have had a booster dose would be valuable.

Lord Kamall: I thank the noble Lord for that question. I have been made aware of this by more than one noble Lord today. I contacted NHSX; it said that it is looking into it and trying to work on a fix as soon as possible. If the noble Lord is aware in a couple of days that that has not been fixed, I hope he will remind me so that I can prompt NHSX.

Lord Campbell-Savours: My Lords—[Inaudible]—very closely to the wise words of Gordon Brown on the need to distribute surplus vaccines internationally. Vaccine expiry is inexcusable. Gordon has made it his life’s work to defend, promote and support the interests of those in need. The third world is in need; if we fail to meet the challenge then not only it but we will lose out. I urge the Minister to listen to him and take this call back to the department for action.

Lord Kamall: I thank the noble Lord for that point. I think noble Lords agree that it is really important that we make sure that we vaccinate as much of the world as possible. There is no point in us being vaccinated if we then travel to areas in the rest of the world where people are exposed. We are co-operating on a number of international programmes, including COVAX and others. One of my portfolio roles in the department is on international agreements and liaison. I have been speaking to a number of Health Ministers from a number of different countries about how we can help more. I have also been talking to some of the suppliers of the vaccines about how we can make sure that, where we do not order domestically, we can redirect some of those orders for international help. I completely agree with the sentiment of the question from the noble Lord that it is really important that we play our part in helping the international community.

Baroness Henig: My Lords, there are four remote speakers. I shall now call the second of them, the noble Baroness, Lady Harris of Richmond.

Baroness Harris of Richmond: My Lords, I very much share the concern of the noble Lord, Lord Pannick. My doctor has recorded my booster jab—at least, I think it is my booster jab; it may be a third primary jab, I do not know—so I just want to know when it is going to appear on the NHS app. Because I was told quite specifically when I was jabbed that it would.

Lord Kamall: I am afraid I am going to have to repeat the answer I gave earlier to the noble Lord. We were made aware of this only today and as soon as I heard, I got hold of NHSX and asked what was happening because, clearly, a number of people are experiencing the same issue. We have chased NHSX and I hope that NHSX will fix it as soon as possible. If it does not, please chase me up.

Baroness Henig: My Lords, the noble Baroness, Lady Masham of Ilton, is taking part remotely and I invite her to speak.

Baroness Masham of Ilton: My Lords, what is the situation with vaccination against coronavirus for inmates and staff in UK prisons? Prisoners often get transferred to other prisons and they move in and out when released and recalled. Many live chaotic lives, but it is important that they all get vaccinated. Is there a system to see that this process is safeguarded, so that jabs are fully completed? Prison health must not be forgotten.

Lord Kamall: The noble Baroness raises a very important point. As far I am aware—I will confirm this—the population of prisons is being treated the same as the wider population in terms of encouragement to take the vaccines and the booster. I will double-check and write to the noble Baroness.

Baroness Henig: My Lords, the noble Baroness, Lady Thomas of Winchester, is taking part remotely and I invite her to speak.

Baroness Thomas of Winchester: My Lords, will the Minister look into booster vaccines for vulnerable people such as me who need to be vaccinated at home? There is never any information about this cohort of people who are at the mercy of there being a healthcare professional from a local surgery available. There is a danger that they may be overlooked by surgeries, some of which might be overwhelmed at this time.

Lord Kamall: The NHS is writing to all patients who may be eligible so that they can talk through their options with their GP or a consultant if they have not done so already. I understand that that includes the option to be vaccinated at home, but I will double-check and write to the noble Baroness.

Baroness Andrews: My Lords, two questions were put to the noble Lord that he has not had time to answer. First, I should say that, like him, I have received my booster invitation for Thursday and I am absolutely delighted. Two questions, which I do not think were technical, were asked by the noble Baroness, Lady Brinton. One was about why centres are closing. Clearly, with this big push now, spearheaded by the Government, we need to keep as many open as possible. The second relates to something the Minister said that surprised me: he talked about a level of complacency. It is indeed possible, I think, to see the failure to make masks mandatory as an indication of complacency. Will he say a little more about what he meant by the level of complacency and how making masks mandatory might help to meet that?

Lord Kamall: On the noble Baroness’s first point, about the centres closing at 6 pm, this is the first time that I have been made aware of that. I welcome any feedback about what is working and what is not. This is not necessarily political; we all want it to work, so I welcome any information on that. I will double-check it.
The noble Baroness referred to complacency. It is very interesting when people say that most people are in favour of measures on masks. It is quite often like polling, when we see a difference between stated preferences and revealed preferences. It is claimed that a number of people are in favour of masks and want to wear them, but, when it comes to public transport and the revealed preferences, we see that it depends on the mode of public transport—sometimes take-up is less than 50%. I have said to people, “Make sure you get your boosters”, but maybe we have to take some responsibility for not making it clear that the boosters were important and for not pushing them as much as possible. The first and second vaccines were taken up with such enthusiasm because people wanted to return to as close to normal as possible, but when it came to the booster, it really needed all of us to push it to make sure that more people took it.

Baroness Watkins of Tavistock: My Lords, I declare my interest as a nurse. Would it be helpful to reinforce the message that some of the most vulnerable people should contact their specialist nurse practitioners, who in many cases are much more obtainable than both consultants and general practitioners? I would really like the Government to emphasise that.
Turning to 12 to 15 year-olds, I declare my interest in that my daughter is a secondary schoolteacher in south London. Anti-vaxxers outside schools are creating a real problem. I understand that the Government have powers to reduce their access within the area of a school. Is this being seriously considered? The uptake of vaccines in the 12 to 15 year-old age group requires the consent of an adult. Therefore, it is imperative that schools are part of that system.

Lord Kamall: I thank the noble Baroness for that really important point: it is about not only consultants and GPs but nurse practitioners. When you go to book a booster jab and look at availability, you might well expect it to be at a hospital or a surgery, but many community pharmacies are offering it. It is important that we have those conversations. I agree with the noble Baroness on the advice that she has given.
I also share the noble Baroness’s concerns about the anti-vaxxers. It is a difficult balance: I believe in freedom of speech, but they should not inhibit people. It is really important that we make the case. As of 2 November, 24% of 12 to 15 year-olds had received their first dose. They will have received it through school. The NHS is also working closely with schools to offer vaccines to young people as soon as parents or guardians consent. We are also expanding our programme of walk-in centres to make sure that we can provide parents with extra choice over where and when their children are vaccinated. The vaccines are safe and will protect children from Covid-19. We repeat this. The current  advice is to give the majority of children a single dose, which means that they will be afforded a high level of protection.
On people protesting outside schools, the Government have explained their concerns about that. At the moment, I have no further information. As soon as there is further information, noble Lords will be informed.

Baroness Uddin: My Lords—

Baroness Walmsley: My Lords, I think it is this side.

Baroness Uddin: Sometimes, I wish there was a list. I give way.

Baroness Walmsley: My Lords, is the Minister aware of an article in the Health Service Journal today in which a highly respected chief executive of a highly rated acute trust said that his hospital was struggling on every front and that it was far worse than in January? He said that the emergency department was at record levels and elective referrals were increasing as exhausted staff turned down extra shifts needed to reduce the growing backlog. One in five of his beds is filled with medically fit people who cannot be discharged because they cannot find a care package. There have been more than 65,000 Covid admissions to English hospitals in the last three months; that is double the same period last year when, of course, there were no vaccines. Does the Minister agree with this chief executive when he said, “This time the vaccine hasn’t saved us”?

Lord Kamall: The most important thing is getting the third vaccine. The Government are monitoring and considering a wide range of factors, including cases and immunity, but also advice from the NHS as to whether it is feeling overwhelmed. That is the situation at the moment. We continue to monitor it; it is not a static situation. We are trying to get the booster out as much as possible and are really driving home the message that the booster is the most effective way to fight against Covid. We are making sure that we get as many people as possible vaccinated and taking up the opportunity of a booster.

Baroness Uddin: My Lords, the Minister talks about mask hesitancy in public spaces. It would be extremely helpful for the Government to take direct action and actually mandate masks. That would be very helpful for members of the public.
In the past eight weeks our family members have directly experienced the NHS, with Covid remaining a severe threat. Ward-based mental health services are in dire straits and lack sufficient funds for essential support and care. Are they also receiving vaccinations? The other thing is the incredibly outstanding services of the Medway Maritime Hospital intensive care unit, where a family member lies critically ill and is really struggling with their care.

Noble Lords: Question!

Baroness Uddin: I really find this offensive; I am trying to make a point. I am about to get to my question. Many Members of the Lords do this, but I find that specific Members are always prevented from speaking out. I want to finish my point, which is to say that the health inequalities remain a deep scar among many communities and many sections of the community, where the constant bombardment of information has long since died. Will the Minister agree that we need to continue to mandate masks and ensure that there are meaningful—

Lord Scriven: Question!

Baroness Uddin: I have asked a question.

Baroness Chisholm of Owlpen: Will the noble Baroness ask her question and sit down? She is preventing other people from asking questions.

Baroness Uddin: My Lords, will the Minister agree that incredibly important environmental safeguards continue to be required to prevent children catching Covid and to empower parents with sufficient information so that they can make informed choices?

Lord Scriven: Outrageous.

Baroness Uddin: I hope you say that at other times.

Lord Scriven: I do; you went on for two minutes.

Lord Kamall: I thank the noble Baroness for her question, I think. To be fair, she has made a number of points, especially about disparities and inequalities. It is quite sad that there is low uptake of the vaccine in a number of communities. I know that the noble Baroness has done a lot of good work in the past in Tower Hamlets and other areas with minority communities.
The most important way we can tackle this issue is to encourage people to be vaccinated. We want to roll out the booster as quickly as possible and, sadly, too many people have still not taken their first and second vaccines yet. I know that noble Lords across the House have many contacts in many communities, so it is important, please, to come to me with suggestions and ideas. I have spoken to a number of noble Lords across the House about how to tackle this and how best to reach people who are hesitant and who may not trust authority, and encourage them to take the vaccine. I thank the noble Baroness for her question.

Duke of Somerset: My Lords, many other countries have introduced a form of green pass as a proof of vaccine to gain entry to places for public gatherings, such as restaurants and theatres. This has resulted in a higher take-up of the vaccine, as people have been encouraged to have these passes to access the things they want. Surely we should introduce a similar mandatory proof of vaccine, either paper or electronic, which will help to drive up rates of vaccination.

Lord Kamall: Apart from the technical hitches in getting data on to it, which a number of noble Lords have referred to, the NHS app has a record of vaccination, which is important. The measures to which the noble Duke refers are being considered as part of plan B, but at the moment the advice is not to move to plan B but to focus on getting people vaccinated. The Government are concerned that other messages may confuse the picture somewhat. The message is simple: get vaccinated—vaccine one, vaccine two or booster. If there are any problems, please let me and others know so that we can push. Sometimes people do not always talk to each other—let us put it that way—so let us make sure that this is as joined-up as possible.

Viscount Stansgate: My Lords, I ask the Minister about the latest advice received by the Government from the Scientific Advisory Group for Emergencies. First, has SAGE advised the Government that Covid is moving into its endemic stage or does it continue to advise the Government that we are dealing with a pandemic, which needs additional measures? Secondly, does the Minister regret the resignation of Sir Jeremy Farrar, the director of the Wellcome Trust and an eminent scientist, from membership of SAGE?

Lord Kamall: The Government welcome advice from a range of stakeholders and have listened to SAGE and others throughout to balance their different views. In fact, I remember that when Jeremy Farrar was resigning he insisted that his departure should not be interpreted as a fresh disagreement with the Government. The Government listen to a range of views and balance them all.

Baroness Henig: The time for Back-Bench questions has now elapsed.

Police, Crime, Sentencing and Courts Bill
 - Committee (6th Day) (Continued)

Amendment 157

Lord Brooke of Alverthorpe: Moved by Lord Brooke of Alverthorpe
157: After Clause 76, insert the following new Clause—“Alcohol limits(1) In section 11(2) of the Road Traffic Act 1988 (interpretation of sections 4 to 10), the definition of “the prescribed limit” is amended as follows.(2) For paragraph (a) substitute—“(a) 22 microgrammes of alcohol in 100 millilitres of breath,”.(3) For paragraph (b) substitute—“(b) 50 milligrammes of alcohol in 100 millilitres of blood,”.(4) For paragraph (c) substitute—“(c) 67 milligrammes of alcohol in 100 millilitres of urine,”.   (5) In section 8(2) of the Road Traffic Act 1988 (choice of specimens of breath), for “50 microgrammes of alcohol in 100 millilitres of breath” substitute “31 microgrammes of alcohol in 100 millilitres of breath”.”

Lord Brooke of Alverthorpe: My Lords, Amendment 157 would insert a new clause to lower the drink-drive alcohol limit in England and Wales from 80 milligrams to 50 milligrams of alcohol for 100 millilitres of blood and to make appropriate adjustments for breath and urine samples too.
I remind the House that I moved a similar amendment to the Road Traffic Act at Second Reading of a Private Member’s Bill on 29 January 2016. A full report is in Hansard of that date—in vol. 768, no. 102. I spoke then for 20 minutes. I reassure noble Lords that I am not going to do anything like that today.

Noble Lords: What a shame!

Lord Brooke of Alverthorpe: However, on rereading this speech, I was so pleased with the evidence-based arguments that I had advanced—which, as I say, I am not going to repeat this evening—that the more I read it, the more I realised what a shame it was that although the Bill went through this House, and I remind my colleagues here that they voted for it last time around, the Government would not give it time when it went to the Commons for it to be dealt with there.
Since 2015, matters have got worse rather than better, particularly in the last two years. The figures plateaued between 2015 and 2018, but we saw some serious injuries and deaths in 2019—a total of 2,050. A total of 230 people died, up from 200 in 2015, when I last addressed this issue. There was also an increase of 8% in seriously injured casualties compared to 2018. Will the Minister confirm whether the figures I am quoting are correct? If I am not right then I would be pleased to be corrected, but I think I am on the right track.
This country had a very good record in the last century. We led most of Europe. We trailblazed in addressing injuries and deaths on the road and all the aspects of them. However, over the years our leadership has started to diminish. This is in part because we have been unwilling to change. Had we gone back to my 2015 data, I would have been talking about Baroness Castle and the way that she introduced it, and asking how we alighted on the 80-milligram figure. It was plucked out of the air with not a great deal of evidence behind it, and work done subsequently indicated that it was very high indeed and should have been lowered.
We have ended up here, where we see that the rest of Europe is at 50 or below, with some as low as 20, and only two countries—England and Wales and Malta—have retained the figure of 80. The question is: have we done the right thing in persisting with holding to 80? Some of the Scandinavian countries that are doing extraordinarily well in reducing deaths on the road are way down at the 20 milligrams level.
Why do these countries have lower limits? It is because all the evidence shows that 80 milligrams in the blood increases the risk of a driver’s involvement   in a collision, by three times for collisions leading to injuries and by about six times for collisions leading to death. Even at the lower BAC level of 50 that I am advancing in my amendment, and I am grateful to my colleagues who are supporting me—the noble Baronesses, Lady Randerson and Lady Finlay, have put their names to this amendment—carries substantial risks for people who are inebriated at that level. It is not an easy ride; it is a risky one. Those levels of risk, if the Government are prepared to accept our figures, would be reduced respectively to about 1.5 and 2.5 times more, by comparison with the figure of 80 milligrams. That is a stark difference.
I ask the Minister to say why the Government declined in 2016 to make the change and whether these academic assessments are right that we are permitting people to legally drive at a limit that is a danger to life and limb and we refuse to change it. Where is the evidence for continuing with what we are doing at the moment?
The Scottish Government, as we are aware, cut the limit to 50 milligrams in December 2014, Northern Ireland has legislated to follow suit, and the Welsh Government would like to do the same if they had permission from us. Initially, Scotland saw a decrease in the number of deaths and injuries, but later reports show that what has been happening there is not quite so encouraging as they first experienced.
I will be very straight about the facts. I am not going to pretend that it produced as good a result in Scotland as we would have liked, but there are some other factors to be taken into account there. They did not run any particularly big advertising campaign to try to drive it home. They did not give any further resources to enforcement. There is a range of things they could have done to make it more effective. Initially, certainly, there was some beneficial change. Lives were saved. If a few lives were saved, I am sure they would argue that it was worth doing. They probably need to do more now. The Minister was nodding. I anticipate that he will quote Scotland and say that they need to keep an eye on it—the Scottish results are not convincing enough for us to change.
I have identified a weakness, and I share the view that enforcement is vitally important. With the help of the noble Earl, Lord Attlee, we have produced a solution on the enforcement front in Amendment 164, to which he will speak at greater length. We always try to be helpful. It is important to cut the number of deaths and the rising number of serious injuries. We must find any possible way to discourage people from drink-driving. Reducing the limit to 50 would be a discouragement. Support for the second amendment, to introduce random breath testing, need not necessarily mean incurring the use of greater resources. We believe that, on balance, it would provide a deterrent which would have a very dramatic effect on the way thatusb people who still continued to drink and drive would respond.
There is evidence from abroad. It has been particularly effective in Australia, where they have followed this practice. Australia had a very bad record on drinking and driving. The introduction of random breath testing has changed it quite dramatically. People no longer drink and drive as they used to do. Lifestyles have changed. We can do the same in this country.
The life of each individual is unique. It behoves us to take every opportunity to end the selfish killing and maiming by drunk driving. There is a particular category of repeat offenders. The reality is that the police often know who these people are, but unless they commit a traffic offence, the police cannot stop and breath-test them. If the second amendment is adopted, along with the first, I believe it would make a quite dramatic change in lifestyles and in respect for each other. Random breath testing would reduce deaths and injuries.
Driving under the influence of drugs is also an important issue to be addressed. We are not endeavouring to do this, or to complicate the issue here. In this context, we are simply dealing with alcohol. We will need to come back and look at people who take drugs. For the moment, this is about alcohol. It is about a relatively modest change with no great requirement for additional resourcing. It is about focusing on the area that really needs addressing. I trust that, this time round, the Government are prepared to support it, rather than to oppose it in the way that they did last time.

Baroness Finlay of Llandaff: My Lords, I have added my name to this amendment. I declare that I chair the Commission on Alcohol Harm.
This amendment would simply bring us in line with other EU and Commonwealth nations. It has been estimated that this amendment alone could save at least 25 lives a year and prevent 95 casualties. This may not sound like a large number, but the majority of those who die on the road are young adults or children in accidents involving drink-driving. Men are far more likely to have been drinking: 78% of male drivers were involved in drink-drive accidents, against 69% of men in other types of accidents. Where casualties are involved, the numbers are also higher for men—67% where alcohol was involved, against 60% for all reported accidents.
Sadly, Wales does particularly badly, with a higher percentage of casualties in drink-drive accidents than in Scotland or England. When we look at the age of people involved, it is quite chilling. Most of the pedestrian casualties are children and young adults, most of the pedal cyclist casualties are children and young adults, and the motorcyclists are young adults. The car occupant casualty rate is higher when alcohol has been involved in the accident. The drink driver does not only kill themselves; the tragedy is that they will kill somebody else’s child or parent. If death is not the outcome, life-changing injuries often are. It has been estimated that around 5%—one in 20—of all casualties in reported road accidents involved alcohol in one way or another; often at least one driver or rider was over the drink-drive limit.
I look back in horror at my childhood, when “Have one for the road” was said as somebody left the house after coming round for dinner. The accident rate then was absolutely appalling; many people of my age can probably remember somebody who died in one of those accidents. However, if we look at 2019, despite Covid looming across Christmas and the festive season, there were 230 verified drink-drive fatalities, with a provisional estimate of 280 fatalities for that year  involving drink. That constituted 13% of all casualties on the road, and there were 7,800 drink-drive casualties, accounting for 5% of all casualties on the roads.
In the report from the alcohol harms commission that I chaired we pointed out that in 2017, the Department for Transport estimated that 310 pedestrians and 110 cyclists were casualties in drink-drive accidents, including 60 children aged nought to 15. One police witness, Sergeant Mick Urwin, described the impact of drink driving. Apart from the perpetrators, who lose their licence and often their job and may be imprisoned, the greatest impact is on the family of someone killed or seriously injured by a drunk driver. It is devastating. He explained that
“delivering a death message to a parent, brother, sister, son or daughter to inform them that someone has been killed by a drink driver is not something I ever got used to.”
We had evidence from the ex-wife of an alcoholic about how difficult it was to persuade her children not to get in the car if they thought that daddy had had a drink. Fire officers told us that they now rescue more people from road collisions than house fires, and many of them are due to drunk-driving. A survey by Drink Wise, Age Well of 16,700 people over 50 found that drink-driving was commonplace among high-risk drinkers: 30% reported that they had driven when they thought they were over the legal limit in the preceding year. That is a huge number of people who are aware that they have drunk too much but who think they will get away with it.
If one young parent dies in a drink-drive accident, they are likely to leave orphaned two or three children. Those children’s life chances are seriously damaged, with higher rates of mental health problems and lower school attainment; they are less likely to get into higher education; and they are at a higher risk of suicide later in life—in other words, this year’s drink-driving fatalities leave decades of societal difficulties ahead. The tragedy is that these are avoidable accidents. The simple message: “Do not drink and hold the car keys” is the one to give the public. We all know that simple messages work. We all know that legislation gives messages. That, combined with the simple message that one in eight road deaths involves a driver over the limit, can be enough to bring about the change that we need across society. I do not know of anybody, other than perhaps those in the alcohol retail industry, who objects to lowering the drink-drive limit. We have an NHS that is struggling, a court system with backlogs, and terrible backlogs for psychological support services for young children who are bereaved.
We had a debate earlier about road safety. Nobody will be damaged by lowering the drink-drive limit, but every year hundreds of people will die, and thousands will be damaged, by not acting now. I hope the Government will see it is time to come in line with the rest of the Commonwealth.

Earl Attlee: My Lords, I rise to oppose Amendment 157 and speak to Amendment 164 in my name and that of the noble Lord, Lord Brooke of Alverthorpe. I am currently drinking only small amounts of alcohol, so I have no personal interest in this matter.
I have listened carefully to the arguments in support of Amendment 157, but I still do not believe it will have the effect desired. I think that all noble Lords in the Committee will agree that any consumption of alcohol will lead to a deterioration in driving standards and increase the risk of an accident. The noble Lord, Lord Brooke, asked where the current limit comes from. The Grand Rapids study of 1964 showed that the risk of having an accident rapidly increased at a blood alcohol concentration—BAC—of 80 milligrams per 100 millilitres of blood or the equivalent. That is why our current limit is set at that level, and I think that is the correct level.
My understanding is that compliant drivers feel uncomfortable driving with a BAC of more than 30 milligrams. My feeling is that the majority of drivers adhere strictly to a limit of 50 milligrams in any  case, and when they are caught driving at more than 80 milligrams, it is often a stupid, but criminal, mistake which can arise for a variety of reasons which I will not weary the Committee with. The evidence for this contention is that when the 50-milligram limit was introduced in Scotland, the initial compliance improved by only 12% and I suggest that when a contravention occurred and was detected, it was often the kind of “mistake” I referred to. In this country, we rightly have severe penalties for exceeding the current limit; it is also socially unacceptable. Other countries, as observed by noble Lords, have a limit of 50, but without the severe penalties, at that BAC, that we have.
After the Scottish Government lowered their BAC limit, the noble Lord, Lord Brooke, and I were very keen to see the data, but, I suspect, for slightly different reasons. I was worried that I might be wrong. If that had turned out to be case, I would be supporting Amendment 157. The Scottish Government commissioned research to measure the effect of their changes to the BAC limit. The conclusions were that the change made no detectable difference to the accident rate in Scotland. I never expected it to, and I will explain why in a moment. The Committee will have been grateful for the frankness of the noble Lord, Lord Brooke, when he touched on this point.
The proponents of Amendment 157 will have to explain to the Committee why they think the results in England and Wales would be any different from those in Scotland. According to 2019 DfT statistics, of a sample size of 243 dead drivers, 34% had a BAC of 10 or more, so had been drinking, 25% had a BAC of 51 or more, 23% of 81 or more, 22% of 101 or more, 16% of 151 or more, and 5% were at 200. What these figures show is that most non-compliant drivers are not just slightly over the limit, but far over the limit.
I have argued from the government Dispatch Box that there is a cohort of drivers who are unregulated drinkers. They are clinically dependent upon alcohol, they do not know how much they have been drinking, and they pay absolutely no attention whatever to the legal limits—thus, changing the limit will have no effect on them. The police do not find it very difficult to detect drunk drivers who have made the criminal mistake I have already referred to. They tend to overcompensate and drive too cautiously, and so give themselves away, and thus can be legally stopped by  the police. Unfortunately, an unregulated driver is much more difficult to detect. They will drive fluidly for relatively short distances, and therefore with a lower chance of even being seen by the police, let alone being caught.
As proposed by the noble Lord, Lord Brooke, the only way of dealing with and detecting these very dangerous drivers who are unregulated drinkers is for the police to undertake operations where they stop every driver to check that they have not been drinking. I accept that the amendment might not be perfectly drafted, and that some civil rights precautions may have to be put in. However, not only would the police detect more of these very dangerous drivers but the deterrent effect would be considerable. Although it may be imperfect, Amendment 164 achieves this.

Baroness Jones of Moulsecoomb: My Lords, I declare an interest as president of the Road Danger Reduction Forum. I support both these amendments. It is absolutely ridiculous that we have such high alcohol limits, and we really ought to bring them down. We should say that no alcohol is permitted when you are driving—when you are in charge of a tonne of metal.
I want to make a small point, but it is something that road safety campaigners care very much about. We have heard the word “accident” used a lot. Road safety campaigners ask that we do not use the word “accident”, because that presupposes that it was accidental. It prejudges the situation, and that is clearly not right when something might come to court. They ask instead that we use the words “incident”, “collision” or even “crash”, but not “accident”. There is also an argument for saying that we should not use the words “road safety”, because that is the solution to the problem; the problem itself is “road danger”. We have to get our head around these differences, because it changes the way we perceive such situations.

Baroness Hayter of Kentish Town: My Lords, I will not repeat what I said earlier about my own mother having been killed because of a drunk driver—though I did not mention at the time that I also lost my brother-in-law in a different accident. The people who did this were not dependent, unregulated drinkers at all; they were perfectly normal people, who got behind the wheel of a car when they had been drinking. As the noble Baroness just said, this is not accidental. It is deliberate: these people have a drink and then get into a car.
But things have altered in those 60 years. I mentioned seatbelts earlier, and there has obviously been the breathalyser. When I first started campaigning on this, the Government’s Christmas campaign that year was “Stay Low”—it was not even “Don’t Drink”. So we have made enormous progress, and we should not forget that. But it is a journey, and we have not got there yet. We ought to continue on that journey.
Listening to some of the earlier debate, I heard the argument that the way to solve this is not to use sentencing or to send more people to prison. I have a lot of sympathy with this. I think there are times when  prison is right, but what we actually want is prevention: we want to stop people getting in a car after they have had a drink.
Just like the changes I have mentioned, we also have to celebrate the fact that the Government and industry have done a lot. There has been a really good dialogue. There is now zero-alcohol beer—my fridge at home is full of it—that tastes very good. It is not like the early stuff; it is very good. There has been a big investment by industry to make that available—you can now get my favourite tipple, Guinness, with zero alcohol. There is the acceptability of water with meals, and a number of pubs serve coffee. We have to accept that this has been a whole-society move, but, as I say, we should not just stop where we have got to; we need to continue on the journey.
Just as the industry has been very good, we should acknowledge what the Government did in the Budget, when they moved to what a number of us have been asking for—oh, for lots of years: that the tax on alcohol should correlate with the strength of the alcohol in the drink. The Government have done that. It will take time for it to be implemented, but we are moving in the direction of understanding that. All of those are great things. It means that there is a much greater choice of drinks, either in the pub or while drinking at home.
However, there is still a problem: people are getting into cars when they have been drinking. I find it extraordinary, even at 50 milligrams. I do not drink at all when I am driving because I know that my foot would simply not hit the brake as fast, even after one drink. I know it would not, so I do not do it at all. Driving round London at the moment, even at 20 miles an hour, I see some cyclists—and I am a cyclist—going round without lights on and wearing dark clothes; you often have to hit the brake very fast. We may need to continue to move that way.
Therefore, I really favour this drop to 50 milligrams. It works very well in France, where much more is done, with proper random breath tests—closing off a road and checking everyone going through. That is what I would like to see. You do not have to do it very often, by the way, just every now and again.
The other possibility—I know we have discussed it in earlier debates—is whether we could move at least to 50 milligrams for new drivers; say, in the first five years of being qualified. My guess is that, once they get used to driving without drinking at all, they would continue that through life. I think some thought and creativity could be given to that.
We need to go further. I hope the Government do not say that they are doing everything they can, that they have an advertising campaign, that everything is brilliant and that we do not need to move any further. While sometimes they have come through Private Members’ Bills, often the changes we have had have been from the Government, whether through Barbara Castle or others. There is a responsibility on the Government to take it a bit further. Therefore, I hope that the response we get will be “Yes, it is time to do more”. And these may be just the two amendments that we need.

Lord Paddick: My Lords, very briefly, from my professional experience, there is no safe level of alcohol for a driver. The message should be clear to all drivers that you should not drink and drive. I think that the limit should not be set at zero, because you can still have alcohol in your system the following day and there may be a need for some leeway, but at a level a lot lower than is currently the case. Certainly, the levels that are suggested in this amendment are reasonable. There needs to be a significant reduction in the alcohol limit, but perhaps not set at zero.
The other thing to say—I am sure the Minister will address the Committee on this—is that I am not sure that the second amendment is necessary, as the police are entitled to stop any driver to check their documents. If they then detect alcohol, provided the officer is in uniform, they can administer a breath test. I will leave that for the Minister to confirm.

Baroness Randerson: My Lords, I added my name to Amendment 157. I need to say very little following the speakers today, who have greater expertise than I have—and, of course, the noble Baroness, Lady Hayter, has her own tragic experience to bring to this debate.
I spoke about this issue during Oral Questions last week, and I just want to emphasise a couple of points that I made then. The limit we currently have is 54 years old; the science on which it is based has moved on, and it is outdated. We are not leading the world; we are lagging behind the rest of the world. From Australia to Scotland and the whole of the rest of Europe, we are behind.
There has been discussion about levels of alcohol. Several decades ago, I was present at an experiment—if I could put it that way—run by the police. I do not think they would do it nowadays, but they took a young woman and, during the course of a social evening, with food, she was given alcohol and they tested her. I hasten to say that this was a residential course—she was not driving anywhere. They tested her to see the levels of alcohol. By the time she got to the point where she would have breached that limit, she was slurring her words and having difficulty standing. That was a very frightening experiment, from my perspective.
Some 13% of deaths on the road are caused by drink-driving, and the noble Baroness, Lady Finlay, has mentioned that Wales has a particularly serious problem with this. I live in Wales as well. Elsewhere in the Bill, the Government are creating new offences, and they are upping the penalties for offences. They want to imprison careless drivers. I cannot understand where the opposition to changing and lowering the limit comes from. If the Government wish to be tough on bad driving, this should be part of it.
The noble Earl, Lord Attlee, referred to Scotland, and the noble Lord, Lord Brooke, talked about special circumstances there. It is worth saying that, in one year in Wales, offences went up by 18%, and in England they went up 8%, so if Scotland stood still, that was a relative success, though probably not good enough.
I do not understand why the Government are not keen on this as a solution. I was pleased that in the Budget there was to be the change referred to by the noble Baroness, Lady Hayter, but the headlines were about a 3p cut in the price of beer. The basic law of economics is that, if you cut the price of something, it is to encourage greater sales. So, the message is not good on this.
I urge the Government to think again. Lower limits are supported by the RAC, Brake, and the Alcohol Health Alliance UK. In an attempt to appeal to the Government, I emphasise that this is a highly popular policy. The British Social Attitudes survey showed that 77% of the public are in favour of lowering the alcohol limits. That majority holds across all social and demographic groups, in both rural and urban areas, among young and old, and across all political allegiances. What have the Government got to be frightened of in adopting this policy?

Lord Rosser: My Lords, I am sure that the House will be grateful to my noble friend Lord Brooke of Alverthorpe and his co-signatories for raising these issues again. This is a vitally important debate. We know that prior to the last election, a Transport Minister said that the Government had no plans to change the drink-drive limit. They did not believe that a case had been made and instead would focus on enforcing the current law. However, in January 2021, the Parliamentary Advisory Council for Transport Safety reported that the UK’s current system to prevent drink-driving was no longer adequate. It recommended a major review across the board on drink-driving, including lowering the legal limit.
Rather importantly, on the issue of enforcement, the PACTS report found that:
“Levels of police enforcement had decreased by 63% since 2009 and there are indications that drivers believe they are less likely to be caught.”
We know that drink-driving is one of the biggest causes of road deaths, at 13%, and that in the last decade 240 people have been killed each year where a driver was over the limit and that 17% of drink-drive offences are committed by a reoffender. We also know that levels of police enforcement have decreased quite substantially.
It is relevant to ask the Government what they are doing in this regard. Having said, prior to the last election, that they would instead focus on enforcing the current law, clearly that is not what has happened. Indeed, the situation appears in that regard to have got worse. Are the Government actively looking at international comparisons that have been referred to today, and the fact that we are higher when it comes to the legal limit than virtually every other country? Have they been looking at, for example, random breath tests? What do they make of the evidence? My noble friend Lord Brooke of Alverthorpe, has been open about Scotland having introduced a reduced drink-driving limit in 2014 which brought them into line with most other countries in Europe. My understanding is that it has been accepted by the public and, interestingly, it has not significantly impacted pubs and restaurants, which was one of the arguments against going down the same road as Scotland. It does not appear to have  overloaded the police or the courts, which was another argument, and it seems that Northern Ireland may go even further, at least with a zero limit for novice and professional drivers.
I will listen with interest to what the Government have to say about why we should be so far adrift on international comparisons, and to what the Government have to say regarding the situation in Scotland. I appreciate that my noble friend Lord Brooke of Alverthorpe has given a very accurate statement of the situation, but those arguments which were advanced at the time for not bringing us in line with Scotland, in relation to impacts on pubs and restaurants and the police and courts, for example, have not materialised, as far as I know. I wait to be corrected if I am wrong.
The PACTS report recommended, among other things, mandatory breath-testing powers for the police, a reduction in enforcement levels to be reversed, a lower breath-test limit for England and Wales and for the Government to pay more attention to drink-driving, alcohol harm and night-time economy policies. When he was commenting on the report, the executive director of PACTS said that:
“After 10 years of declining levels of enforcement and social media campaigns aimed at young men, it is time for a new, more comprehensive approach to reducing the toll of drink drive deaths and injuries. Drink driving is often cited as a road safety success story, yet it remains a major killer and progress has ground to a halt since 2010. Not only is better enforcement important but also the problems of mental health and alcohol dependency need to be recognised.”
What has come across in our debate this evening is a recognition that we seem to have stopped making progress; and we are still much higher compared with most other countries involved in the international comparisons. Some of the things that were said about Scotland—that it would be a difficulty if we came down to their level—have not materialised in Scotland. Drink-drive deaths are still at an unacceptable level. We seem to have stopped making progress.
I hope that in the Minister’s response we are going to hear what plans the Government have to bring down the level of drink-driving. It is not good enough that somebody puts forward a proposal to lower the limit and the Government do not agree with it. If the Government do not agree with it, what do they intend to do to improve the situation? Arguments have been advanced tonight as to why bringing down the limit would improve the situation. You can certainly say with random testing that, if the limit is lower, the chances are the random testing is likely to have a more dramatic effect than if the limit is at the present higher level—where we seem to have reached a situation in which a number of those who drink and drive seem fairly convinced they will not be caught or get into difficulties as a result.
I hope we will hear from the Minister tonight what the Government are doing. I hope it will not just be a case of the Government saying, “We don’t agree with an amendment to bring it down to 50, we don’t agree with an amendment about random breath testing”, because if that is their response, it is purely negative. It is saying “We are not prepared to go down the road of the ideas that have been advanced, but we do not have any fresh ideas ourselves—we do not have a programme  for reducing drink-driving”—and that, surely, is what we all want to do in view of the level of deaths. I hope we will get a positive response from the Government and a recognition that we need to do something, not rejection out of hand of every idea that has been put forward in our debate this evening.

Noble Lords: Hear, hear!

Lord Sharpe of Epsom: I am grateful to everybody who contributed to this debate, and I am particularly grateful to the noble Lord, Lord Brooke, for setting out the case for these amendments. I reassure the noble Lord that the Government take road safety very seriously and believe that any form of drink-driving is unacceptable and a serious road safety issue. The Government are committed to tackling drink-driving and ensuring that those guilty of this offence and all such offences are detected and punished. I am unable to confirm his precise figures, but for 2019 the final estimate was that between 210 and 250 people were killed—in deference to the noble Baroness, Lady Jones of Moulsecoomb—in incidents, where at least one driver was over the limit. If I can improve on those figures I will write to the noble Lord.
That number is broadly in line with recent years. We have a combined approach of tough penalties and rigorous enforcement along with highly respected and effective THINK! campaigns. This reinforces the social unacceptability of drink-driving and reminds people of the serious consequences that drinking and driving can have on themselves and others. The Government are obviously aware that the drink-drive limit in England and Wales is one of the highest in western Europe, hence our approach, which I have just outlined.
Turning specifically to Amendment 157 to change the prescribed limits, it is unclear whether it would deliver the desired result—a point well made by my noble friend Lord Attlee. More work needs to be done to see if there will be any such benefit as a result of a reduction in the drink-drive limit. The recent academic study by Bath University demonstrated that there had been no benefit to road safety in Scotland as a consequence of reducing the drink-drive limit. This research highlighted there being no change across all types of accidents involving alcohol as a result of the introduction of a stricter drink-drive limit in Scotland in December 2014.
The Government note—as the noble Lord, Lord Tope, predicted, I am afraid I have to say this—that the University of Glasgow published an independent evaluation of the impact of the reduction of the legal blood alcohol limit in Scotland in the Lancet in December 2018. This evaluation took advantage of the natural experiment created by the lowering of the limit in Scotland only and compared data on weekly road traffic collision rates and alcohol consumption, based on off and on-trade sales data, between Scotland, the intervention group, and England and Wales, the control group. The study found that lowering the drink-drive limit was not associated with any reduction in total road traffic collision rates or serious and fatal road traffic collision rates, but that the change was associated  with a small reduction in per-capita alcohol consumption from on-trade alcohol sales, to the point from the noble Lord, Lord Rosser.
Another area that the Government would want to explore in detail is any effect of minimum pricing of alcohol on drinking and driving. We are aware that there is also a public health aspect to drink-driving in both prevention and rehabilitation of those convicted for such an offence.
In summary, given what I have said about the evidence from Scotland, we believe that we need to study the evidence much more carefully. The noble Lord, Lord Rosser, referenced PACTS, the Parliamentary Advisory Council for Transport Safety, and noted that it had published a variety of reports. The reports were published this year and I assure the noble Lord that the Government are giving them serious consideration. Any change will necessitate work across many organisations and will need careful assessment of any impact, so we should not embark on that process without a clear evidence base.
Turning to Amendment 164, which would introduce random breath testing, as with the noble Lord’s Amendment 157, it is unclear whether this would deliver the desired result of making the roads safer. More work is needed to see if there is any benefit resulting from introducing random breath testing. We would also need to closely examine the equalities and human rights implications of doing so.
Currently, a police officer can administer a roadside drink-driving test only if: a motorist has committed a moving traffic offence; the police officer suspects that the motorist has been drinking, as per the comment of the noble Lord, Lord Paddick; or the motorist has been involved in an accident—here I am using the legal definition, not “collision”, which is the preferred term used by many people involved in road safety work and campaigning.
To extend the breath test power to one of needing no grounds could potentially lead to concerns about disproportionality and targeting of certain groups; the Committee will recall the debate we had last week on stop and search powers. That could have a detrimental effect on community relations and cohesion, as well as damaging wider efforts to prevent and detect those who drink and drive.

Earl Attlee: If the police stopped every vehicle travelling along a certain road, how would that be unfair and disproportionately impact certain communities?

Lord Sharpe of Epsom: With respect to my noble friend, it would very much depend on the road and how the policy was being implemented, which would be an operational consideration, but I take his point.
I am very happy to put the noble Lord, Lord Brooke, and others who have spoken in this short debate in touch with the Road Safety Minister in the Department for Transport so that they can continue to discuss the further important issues raised by these  amendments. I can sense the mood of the Committee, and the noble Baroness, Lady Randerson, quoted some very powerful statistics on public attitudes here, so I urge noble Lords to seek that meeting.
Finally, before I ask the noble Lord to withdraw his amendment, I associate myself with my noble friend Lord Wolfson’s remarks about the personal comments from the noble Baroness, Lady Hayter; she has my deepest sympathy. For now, I invite the noble Lord to withdraw his amendment.

Lord Berkeley: Before the Minister sits down, would I be right in saying that, five years after my noble friend made his previous speech, which apparently lasted a bit longer, the number of convictions for drink-driving has gone up by 25% and all the Government can offer is that they will study the figures for a bit longer and do nothing else? Am I being unfair?

Lord Sharpe of Epsom: With respect, I do not know whether the noble Lord is being unfair, because I do not have the statistics. I will write to him.

Earl Attlee: My concern is that the Minister does not seem to have any policy that directly targets those drivers who I would describe as unregulated drinkers. His policy may have an effect on people who have made the mistake that I referred to and have around 80 milligrammes of alcohol in their blood, but for the unregulated drinkers who drive far in excess of the legal limit, his policies seem to be totally irrelevant.

Lord Brooke of Alverthorpe: My Lords, I am grateful to all noble Lords who have taken part in this short debate. Other than the noble Earl, Lord Attlee, who raised some objections, and I will come to them in a moment, the noble Lord, Lord Paddick, who raised a point about what the police can and cannot do, and the Minister, who had a different interpretation, I think everybody has been singing from the same hymn sheet. The evidence is there and it has got worse. The Government have the opportunity today to set out their stall on what they intend to do. While the Minister has done his best, he has been trying to make bricks without straw. I think the group is very happy to come together and have a meeting with appropriate people on the Government’s side. We will be very pleased to do that, but I give the Minister due notice that this is coming back on Report. It is not going to be left as it is at the moment; some change is required.
Regarding 50 milligrams, I would probably go for 20—the Scandinavian figure. I am sure that the Minister would argue it would make no difference. What matters is the message that is sent to the public at large about what is and is not acceptable. It is wrong that the Government permit a dangerous limit to be in force. Okay, 50 may not be the right limit, but it is less dangerous. I say to the noble Earl, Lord Attlee, that the evidence comes from the work to which we referred. It did not look just at the 80 but at 50, and the further down you go, the less the risk. It is a simple fact of life. The Government either accept it and live with it or change it. I believe that the public are ready for change and that it is wrong that so many people are being  maimed and having serious injuries, and the number has been rising. This needs addressing. This matter will come back.
I was very reasonable. I did not make a great thing about Scotland, as I know that some of the evidence is not helpful. There are other counterarguments, which my noble friend Lord Rosser on the Front Bench, advanced in defence of the Scottish position but it is not as comforting as we would wish. The issue is about how we relate to the public at large and how the Government project what is needed to make a change. We are not looking to involve a great deal more police in it or to upset people by being disproportionate. We are looking to present a deterrent. Most people will change their attitude if they think they are at risk of being stopped, and we would start to see some change taking place. We will have the meeting but this will be back on Report.
I suggest to the Minister that he should explore being a bit more flexible. We are prepared to put a sunset clause in the amendment so that the Government can go back to 80 if they wish or to run an experiment, but it is time to make some change rather than leaving life as it was way back in 2015 and see a continual worsening of the position. I beg leave to withdraw the amendment.
Amendment 157 withdrawn.

Amendment 158

Baroness Randerson: Moved by Baroness Randerson
158: After Clause 76, insert the following new Clause—“Definition of “exceptional hardship”In the Road Traffic Offenders Act 1988, after subsection 35(4), insert—“(4A) In subsection (4)(b) above, the hardship that would be caused by an offender’s disqualification should be regarded as exceptional if and only if it is significantly greater than the hardship that would arise for a large majority of other drivers if the same disqualification were imposed on them.(4B) In assessing whether the hardship arising from the offender’s disqualification would be exceptional, a court may take account of—(a) any circumstances relating to the offender’s economic circumstances or location of residence that would make it exceptionally hard for him to access key services such as grocery shops and postal, banking and healthcare facilities,(b) any hardship that would be incurred by the offender’s family or others who are disabled and who depend on the offender to provide care for them, and(c) any other circumstance which it believes would make the hardship genuinely exceptional.””Member’s explanatory statementThis new Clause provides a definition of “exceptional hardship” for the purpose of RTOA.

Baroness Randerson: My Lords, at various points in the Bill, the Government are seeking to increase penalties and create new offences, but it is fairly pointless increasing penalties on paper if you regularly allow people to avoid them through what has  effectively become a legalised loophole. People avoid a driving ban under the totting-up procedure by pleading exceptional hardship. The problem is that this excuse is being used far from exceptionally. I recall, when in court as magistrates, that we would expect such a plea from some solicitors as a matter of routine for all their clients. The reality is that the definition of exceptional is very broad and applied unevenly.
To give an example, in 2015 Christopher Gard killed cyclist Lee Martin. It was the ninth time he had been caught using his mobile phone while driving. Magistrates had repeatedly accepted that a ban would cause exceptional hardship. There is a case on record of a man being allowed to continue to drive because of the “exceptional hardship” it would cause him if he could not walk his dog—he had to drive a mile to the local park to do that.
This amendment provides a definition of “exceptional hardship”. It is exceptional
“only if it is significantly greater than the hardship that would arise … if the same disqualification were imposed”
on the great majority of drivers. To assist, it gives examples of what the court can take into account.
For example, where you live: if you live 10 miles from the nearest shops and healthcare facilities, halfway up a mountain with no bus service nearby, the ability to drive is clearly very important to you—although, of course, if you live with other family members, you would not be likely to face exceptional hardship because they could probably drive you there instead. If you have to drive as part of your job and will presumably lose your job if you cannot drive, then that would be exceptional hardship; although one wonders whether any employer would want such a bad driver. At the moment, with the shortage of drivers, they might put up with it but in normal circumstances, not so. Clearly, if you are disabled, or a carer on whom a disabled person relies for being taken to the shops, to healthcare and so on, then you would experience exceptional hardship if you could no longer drive. The noble Lord, Lord Berkeley, and I are not being hard-hearted; we are, instead, seeking to ensure that the “exceptional hardship” proviso is used as it was intended to be used.
Finally, to give this some context, in 2020 in England, 33,196 drivers were disqualified under the totting-up procedure and 8,764 people are currently driving around with more than 12 points on their licence. Noble Lords will immediately see from those figures that the “exceptional hardship” plea is being accepted in such a high proportion of cases that it cannot be regarded as exceptional. I urge the Government to give consideration to the need to tighten up that definition.

Lord Berkeley: My Lords, I support this amendment and I shall add just a few words to the noble Baroness’s excellent introduction. I have a friend in Cornwall who is quite famous and about a year ago he was caught driving at about 80 mph in a 50-mph zone. He already had 12 points on his licence, so he pleaded exceptional hardship because he had to visit his ailing mother every day. He was allowed to keep his licence. Two months later, exactly the same thing  happened and he made the same plea. As noble Lords will know, you cannot make the same plea twice for the same offence and the magistrates took away his licence, which made him very angry. But he should not have been angry, because there is an easy solution to this: do not do it in the first place.
The noble Baroness gave many examples of exceptional hardship. I could give a lot more, but I am not going to at this time of night. However, there is a solution to this, which is, do not do it in the first place. Stick to the speed limit, do not go through red traffic lights or whatever else people might think about.
This is not a question of hardship. It is a question of not doing it in the first place so that you are not taken to court and maybe convicted. The definition that the noble Baroness has put in this amendment is a very good one. If the Minister does not like it, perhaps he can come back with an alternative before we get to Report, but we need to find a solution to the 83,000 drivers who have escaped driving bans in the past 10 years because, unless they learn to behave, driving is going to get more dangerous. I hope that the Minister will agree at least to look at the text and come back with something else before Report.

Lord Russell of Liverpool: My Lords, I support the noble Baroness, Lady Randerson.
In doing a little bit of research for this, I went on to the internet and put in “road traffic offences exceptional hardship”. I think I referred in an earlier intervention earlier to the huge legal business that exists to assist drivers who wish to contest some of the allegations against them for their driving. If you put that phrase into a search engine, first of all, you find a huge number of law firms giving you chapter and verse on the ways in which one can plead exceptional hardship. Pressing where it says “videos” gives a whole series of videos where very convincing lawyers, looking very smooth, tell you with a great degree of confidence—probably on the basis of some financially lucrative experience—just how it is possible to contest a ban and plead exceptional hardship. The very fact that it is so easy to find and is clearly a large and lucrative business tells us immediately that something is clearly wrong. The law is, to some extent, making an ass of itself. For those who are able to benefit from it, it is a very profitable endeavour.
Having a licence is not a right; it is a privilege. If people misuse and abuse that privilege, it is completely right that it should be removed. An awful lot of those people who do regard it genuinely as a right, and are deeply affronted at the idea that they should be stopped, are precisely the people against whom a ban is the most effective. In many cases, their driving and their ability to be seen by others driving, often rather flagrantly, is part of their persona and part of their identity. In a sense, removing their ability to drive is a form of emasculation. Despite being male, I am all in favour of emasculation when it comes to an egregious offence like that.
Again, we are looking at huge inconsistency. I will use only one example; it is such an egregious example that I hope your Lordships will forgive me. There is a  gentleman called Alex McFarlane who, in only three months—between June and August 2014, so in one year—triggered safety cameras seven times and did not respond to a single penalty notice. In that three months, he managed to rack up a total of 42 points on his driving licence. When he came in front of the magistrates in Southend, what did he say? He said, “If banned, I will lose my job and my home, and I will be unable to pay off my debts”. The second point he made was the clincher. “Since the incident”, he claimed, “I have been treated for a nervous breakdown, which led to a spending spree and me incurring very heavy debts”. The magistrates accepted his plea. I rest my case.

Earl Attlee: My Lords, I rise to support the noble Baroness. My only complaint is that I do not think it is aggressive enough. I have driven for several decades. I have driven for hundreds of thousands of miles. Touch wood, I have never been prosecuted for a moving traffic offence. The penalty points system is a good system. If I picked up three points for speeding, or for some minor offence, I would be extremely careful not to reoffend. So I do not understand why, if people get a few points, they cannot take the lesson and be compliant. I strongly support the noble Baroness’s amendment.

Baroness Jones of Moulsecoomb: My Lords, it is a pleasure to follow the noble Earl, Lord Attlee, and actually agree with him for a change. The wording is not strong enough, so well done to the noble Baroness, Lady Randerson, for putting this amendment forward.
As the noble Baroness said, at the moment, “exceptional hardship” is anything but exceptional. I cite the case of a person who was exempted from a ban because he said that he had to walk his dog and drive to the nearest park, which was a mile away. I find that absolutely extraordinary; it leads me to think that magistrates ought to get a bit more tuition.
Essentially, points on a licence and the threat of losing that licence are an important part of ensuring that people drive safely and take care of other road users. Around 8,800 people are still driving despite having 12 or more points on their licence, and there is a whole industry of solicitors advising drivers on how to work the system in this way. It is very frustrating for the traffic police who care about enforcing the law and find themselves working hard to bring people to justice and get them convicted, only to see those people allowed to drive home after the case.
There are times when hardship may be truly exceptional, for example if an offender is the sole carer of a person with a disability who would suffer if the offender were unable to drive. Even then, it is a failure of the state if the only way a person with a disability can survive is by getting lifts from a person who is such a dangerous driver that they should not be allowed on the road.
Amendment 158 would ensure that “exceptional hardship” is a true exception rather than just a plea of convenience. Our current road traffic laws, as I started to say earlier, are based far too much on the convenience of drivers rather than justice and safety for other road users. This amendment would ensure that the very worst drivers on the roads do not have a convenient excuse to keep driving.

Lord Rosser: This issue was also raised by my colleague, Ben Bradshaw MP, in the Commons. As has been said, exceptional hardship is the plea a person can use when charged with road traffic offences to avoid losing their licence if not being able to drive would cause them exceptional hardship. Obviously, as we have heard, the concerns about the system are that exceptional hardship is being agreed to too frequently for repeat offenders and in spurious cases.
What has quite clearly been asked of the Government —that is, what is being sought—is a tightening-up of the definition of exceptional hardship. I ask the Government to say in their response, first, whether, in their view, there is an issue with exceptional hardship being agreed to rather too frequently. Do the figures show that the number of times exceptional hardship is being agreed to is going up year by year? As I understand it, between 2011 and 2020, there were more than 83,500 cases where drivers did not receive a driving ban by pleading exceptional hardship. Do the Government have a feel for whether it is the case that instances of exceptional hardship being agreed to are increasing? Are they aware of any areas, perhaps in relation to courts, where there is what they regard as best practice, where the system is working well?
I remember once being told that “exceptional hardship” was something that people suffered, for example,  at times of war. When it comes to the loss of a  licence, perhaps we are talking more about a form of inconvenience than necessarily about hardship. Even in the more extreme case where somebody was able to persuade you that they would lose their job, presumably it is relevant to ask, “Well, that may be the case, but if it is for a short period of time, will the employer be prepared to live with it and give out other duties that do not involve driving?” Perhaps, if they are going to lose their job, it would suggest that the employer is not necessarily highly enamoured of their performance. But, even in a case where you might lose your job, it must surely be assessed against “exceptional hardship”: what would the individual’s prospects be at that time of getting another, completely different job that did not involve driving, if a ban would cause them to lose their job that involved driving?
I know that there are other instances where people come out with examples of it being almost impossible to get to work but where it turns out that, if they were prepared to get up an hour and a half earlier in the morning, they might be able to get there by public transport—but somehow it is regarded as an “exceptional hardship” to have to get up so much earlier to get there by public transport and it taking longer to get home. So I am aware of the way these arguments get used and put forward, and we need to be careful to draw a clear distinction between what is “exceptional hardship”, with a proper definition of “hardship”, and what may be closer to “exceptional inconvenience”.
I simply repeat what I asked earlier: do the Government have a feel for this one? Do they have any information on the extent to which “exceptional hardship” is being used and accepted more as an argument? Do they have any examples of where the wording is being applied in perhaps a more realistic manner, and are they looking to take action in this area? What is being asked for in  this amendment is that we should tighten up the definition of what constitutes exceptional hardship. I await the Government’s response with interest.

Baroness Williams of Trafford: My Lords, I thank all noble Lords, and particularly the noble Baroness, Lady Randerson, for her explanation of this amendment, which seeks to define the term “exceptional hardship” that applies in the context of a court’s decision on whether to impose a driving ban.
I reassure the Committee that the Government take road safety extremely seriously. Drivers who reach 12 points should automatically be disqualified from driving, to protect themselves and others. However, sentencing, including the imposition and length of a driving disqualification, is properly a matter for our independent courts, based on the facts of each case—we have heard of a number of interesting and diverse cases this evening. Courts have the discretion not to disqualify, or to impose a reduced disqualification, if they are satisfied that there are mitigating circumstances justifying a claim of “exceptional hardship”.
This amendment to introduce a definition of “exceptional hardship” is unnecessary, detrimental to judicial discretion and of questionable utility in assisting a court in applying the “exceptional hardship” test. It would introduce a narrow definition that would not be able to account for all circumstances that were presented to the courts and would remove the courts’ freedom to use their experience to reach decisions accordingly.
It might assist the Committee if I read out the sentencing guidance that is already in practice—from my mobile phone. It says:
“When considering whether there are grounds to reduce or avoid a totting up disqualification the court should have regard to the following … It is for the offender to prove to the civil standard of proof that such grounds exist. Other than very exceptionally, this will require evidence from the offender, and where such evidence is given, it must be sworn … Where it is asserted that hardship would be caused, the court must be satisfied that it is not merely inconvenience, or hardship, but exceptional hardship for which the court must have evidence … Almost every disqualification entails hardship for the person disqualified and their immediate family. This is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive … If a motorist continues to offend after becoming aware of the risk to their licence of further penalty points, the court can take this circumstance into account … Courts should be cautious before accepting assertions of exceptional hardship without evidence that alternatives (including alternative means of transport) for avoiding exceptional hardship are not viable.”
It concludes by saying:
“Loss of employment will be an inevitable consequence of a driving ban for many people. Evidence that loss of employment would follow from disqualification is not in itself sufficient to demonstrate exceptional hardship; whether or not it does will depend on the circumstances of the offender and the consequences of that loss of employment on the offender and/or others.”
I hope the Committee found that guidance helpful.
I conclude by saying that having a definition in primary legislation will not only remove the flexibility afforded to the courts but will make it difficult for any changes that might be needed to be made in the future. On that note, I hope the noble Baroness agrees that  this matter is best left to judicial discretion, based on the facts of an individual case, and that on those grounds she will withdraw her amendment.

Baroness Randerson: I thank the Minister for her response and also thank noble Lords who have taken part in this short debate. I respond by pointing out that 12 points do not come out of nowhere; they are the result of repeated offences. In other words, drivers who acquire them have been ignoring the signs for a long while, in most cases.
I take issue with the Minister’s characterisation of this as interfering with judicial discretion. The amendment says that it would be exceptional
“only if it is significantly greater than the hardship that would arise for a large majority of other drivers if the same disqualification were imposed on them.”
That is a simple indication of what “exceptional” means. It goes on to talk about the things the court could take into account, including
“economic circumstances or location of residence”
and any hardship to the family, especially to people who are disabled or for whom the offender provides care. Finally, it includes
“any other circumstance which it believes would make the hardship genuinely exceptional.”
That is about the broadest definition I can imagine.
Courts are used to having and following sentencing guidelines. The Minister indicated that to us, in some detail. I urge the Government, despite the Minister’s reaction, to look again at the sentencing guidelines to see what can be done. Of course, this is a probing amendment, but the statistics say it all: for one reason or another, the courts are not applying this in an exceptional manner, and the Government ought to look at why that is the case. I will of course withdraw the amendment.
Amendment 158 withdrawn.

Amendment 159

Baroness Randerson: Moved by Baroness Randerson
159: After Clause 76, insert the following new Clause—“Review of road traffic offencesThe Secretary of State must carry out a review of all road traffic offences and penalties.”Member’s explanatory statementThis amendment requires the Secretary of State to carry out a review of all road traffic offences and penalties

Baroness Randerson: My Lords, this amendment simply calls for a review of road traffic offences. It refers back to the debate we had earlier. My amendment is very broad—and deliberately so. Other amendments are much more specific and deal with worthwhile issues, but the haphazard range of amendments laid to the Bill is a result of its broad coverage of topics. The amendments that have been laid are just a snapshot of a wide range of issues that require attention and modernisation. I do not believe that this Bill is the place for any kind of systematic look at road traffic offences; they need their own Bill.
The Government undertook a consultation and review in 2014 with that kind of action in mind, but nothing happened. Of course, that 2014 review is now hopelessly out of date and would have to be undertaken again. I want to run through a few of the issues that are significant today but which were hardly worthy of note in 2014. The first is e-scooters. The Government have dozens of so-called pilot schemes under way, but wherever you live in the UK, e-scooters are visible nowadays. They pose problems and need regulation. The situation has gone way beyond any form of government control. I suggest that the Government will find it difficult to impose regulations now after such a period of a lax approach, but they really have to do something about them. In practice, e-scooters are sold with no attempt to explain to people that they are illegal on public roads and pavements outside the pilot scheme areas.
E-scooters pose a danger. In 2020, 484 casualties were officially recorded as the result of e-scooter accidents. Of those, 384 were the users themselves, one of whom, a 16 year-old boy, was killed. Some 128 of those involved in accidents were seriously injured, including a three year-old girl who received life-changing injuries. Reports this year suggest that at least 11 people have been killed so far, but, of course, that has to be officially recorded.
Another issue that hardly featured in 2014 is smart motorways. I do not want to dwell on the details of those, because last week we had the report from the Transport Select Committee in the other place, but it recommended a halt to smart motorway developments until significant safety improvements had been made and more powers for the ORR to block schemes until safety concerns had been dealt with. Clearly the Highway Code needs amending to deal with smart motorways. Since only 29 miles of smart motorway have been running for five years or more, they clearly did not feature in 2014.
Other issues that need tackling are: autonomous vehicles—road regulations and layouts, driver behaviour and legal responsibility all need tackling as a result of those; the trend towards more 20-mile-an-hour zones, as we discussed earlier today; and the fact that, for environmental reasons, road layouts need to change to encourage more walkers and cyclists. Those are always put together in the same paragraph, but in fact their interests are not identical and can conflict.
Bikes themselves are not what they once were. The welcome increase in the number of people cycling, and more people using bikes to commute, means that cyclists are often in a hurry and there is often a conflict with pedestrians and other road users. Electric bikes, which are certainly a recent innovation, are on occasion ridden much faster than the legal limit of 15.5 miles an hour, because you can tamper with the maximum speed. Cyclists can and do injure and kill, as well of course as very often suffering in accidents themselves. Cyclists who cause accidents can be charged only under the 1861 Act, which I referred to earlier today, with “wanton and furious driving”. The fact that we have to refer to an Act that is more than 150 years old is an indication that there is a need for a proper and comprehensive review of road traffic offences.
For those reasons and a host of others, we need a review, not this Christmas tree of a Bill. This is a probing amendment and I will of course withdraw it in due course. However, my question for the Minister is simple: when can we expect a proper road traffic Bill? When can we look for a proper review to modernise our roads?

Lord Berkeley: My Lords, I will speak briefly on Amendment 165 in my name and in the names of the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Russell of Liverpool. We are grouped together with Amendment 159 in the name of the noble Baroness, Lady Randerson. I think we are both looking for the same thing, which is a review of road traffic offences, which we discussed a little earlier this evening. It seems that the time has come to put a time limit on this. We suggest two years from the date of the Bill’s enactment.
As I mentioned earlier, this started in 2014. In 2015-16, the Commons Transport Committee reported with an inquiry on road traffic law enforcement, the All-Party Parliamentary Group for Cycling and Walking reported in 2017, with an inquiry on cycling and the justice system, and in 2018 there was a Westminster Hall debate on road justice and the legal framework, which revealed a cross-party consensus on the need for wide-ranging reforms. Many of the amendments we have discussed tonight demonstrate the need for reform but also the very wide range, scope and potential, and to some extent the differing opinions, which is of course quite normal.
In addition to the groups I have mentioned, there needs to be discussion not just with road safety and road user groups but with representatives of the police, the legal professions and local authorities. It is interesting to reflect that, seven years on from 2014, we could have had that debate by now and we could be passing laws that would save lives by taking the most dangerous drivers off the road.
I hope I can persuade Ministers that there is time for such a review now. I suspect we will be told that there are no current plans. However, the amendments which we and other people have tabled to Part 5 indicate that a review is needed. I suggest that it is time to address the awful additional pain and deaths that so many people have suffered as a result of the failure to review and change the law, and I look forward to the Minister’s response.

Baroness Jones of Moulsecoomb: My Lords, I think we have made the point that there is a huge inconsistency between road traffic offences and other offences causing injury and death. The penalties are simply not similar in any way.
Many years ago, when I first started getting interested in traffic crime, I went out several times with the traffic police and saw a number of investigations and crashes. At the time, I was told about some incidents that had happened and the sentences that the drivers had got, and these were horrific crashes. A police sergeant working there said to me that if he wanted to kill somebody, he would use his car. He would either get off scot free or would get a minimal sentence because, finally, you can always claim that it is an accident.
The reality of this was brought home to me in 2014, when a man travelling at 80 to 88 miles an hour drove straight at the traffic officer who stepped out to flag down his vehicle for speeding. The killer made no attempt to stop, as he threw PC Duncan into the air “like a rag doll” and left him with fatal injuries. The starting point for murdering a police officer with a knife or iron bar is 30 years; this driver received an eight-and-a-half-year sentence. Nobody will think that is fair. That driver knew the damage he could do to a human body at 80 miles an hour.
Pedestrians, cyclists and other road users are expected to be collateral damage to our determination to travel on our roads using our cars. The idea that we do not need a review of traffic laws and offences is ridiculous. I look forward to the Minister stepping up and saying he will do this straightaway.

Lord Russell of Liverpool: My Lords, I support both amendments, including that of the noble Lord, Lord Berkeley, of which I am a co-signatory. As discussed earlier, most UK road traffic legislation predates the modern era and lags some way behind. I am ancient enough to remember that in the 1950s, when travelling around probably at high speed with my mother in her two-seater red MG, RAC officers would stand to attention and salute as we went past, after seeing the RAC badge. That does not seem to happen any more. I can also remember the designer of the Mini, Sir Alec Issigonis of blessed memory. He had two rules when driving a car. First, he did not allow a wireless—as they were then called—in his car, because he thought that was a distraction. Secondly, if anybody was a passenger in his car, including Lady Issigonis, silence was required. He felt that any discourse was a distraction from driving. It is rather different now with the array of technology in one’s car, including technology allowing the car to talk back. Perhaps some people find that preferable to having their other half talk to them, but that is another matter.
I live in SW6, where the roads are like the wild south-west. I go around a lot by bicycle, and every day I see the most extraordinary and flagrant driving and bicycling. At a local Tesco Metro there is a security guard, who I know is there when his state-of-the-art electric bicycle is locked up outside. I spoke to him and looked at his bicycle, as it is a great deal more powerful than mine. I asked him, “How fast does it go?” and he said, “About 50 miles an hour.” I said, “Do you realise that’s illegal?” He said, “Oh yeah. I had it down the road the other day, and a couple of police officers came up admiring the bicycle, asked me how fast it would go, and were very impressed.” That is a strange state of affairs.
The noble Baroness, Lady Randerson, mentioned e-scooters, which I see all over the place. They are incredibly dangerous. The noble and learned Lord, Lord Hope, talked earlier about Edinburgh, where the bicycle lanes have been designed in such a way that they are now full of leaves. There is no equipment to clean them, so people are in mortal danger if they ride a bicycle in a bicycle lane. That is not good.
That is only part of the problem. As the Minister may recall, during the debate on some earlier aspects of the Bill, we talked in particular about a report from September by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services. It so happens that that same institution produced a report in July last year called Roads Policing: Not Optional. It looked at the state of road policing and the enforcement of the types of laws and regulations across England and Wales about which we are talking. If you are responsible for enforcement, it is not a happy read. It says:
“we found that the importance of roads policing has been in decline”
for many years. In some instances, it found police forces where the officers in charge of road policing were not familiar with the relevant road traffic laws which they were meant to enforce. It asked several questions about the state of enforcement of these laws:
“How effective are the national and local strategic approaches to roads policing? Roads policing in some forces is inadequate … How well are capability and capacity matched to demand? Often capability and capacity doesn’t meet demand … How well do the police engage with the public and partners? A lack of co-ordination hinders effective engagement with the public and partners … How well are police officers trained to deal with roads policing matters? Roads policing training should be standardised and accredited.”
It then made a series of 13 eminently sensible recommendations.
If we are to have a wholesale review of road traffic offences, it has to be done hand in hand with enforcement. There is no point in having laws and regulations if we are incapable of enforcing them consistently. You may say that the time is not now but, at some point in the future, we are going to have to do something before more and more people are killed and there are more and more complex remote vehicles, e-scooters and all the rest of it. Why not just acknowledge that and bite the bullet now, rather than kick the can down the road, which we have been doing for so many years?

Lord Rosser: My Lords, I will be brief because I think that the arguments in favour of these two amendments have been made very powerfully. They are both intended to require the Secretary of State to carry out a review of road traffic offences and penalties. As has been pointed out, there have been so many changes with our roads and new vehicles in recent years as to justify in itself the need for the review which these two amendments seek. As I understand it, the Government promised a full review of road traffic offences and penalties back in 2014. So far as I know, this has not yet happened. In expressing our support for these amendments and for what they seek to achieve, I simply ask what has happened to the promised review so far as the Government are concerned.

Lord Sharpe of Epsom: I thank all noble Lords who have participated in this relatively short debate. As we have heard, Amendments 159 and 165 would require the Government to conduct a full review of road traffic offences. I shall make a number of brief points in response.
First, we do not consider it appropriate to include a requirement in legislation for the Government to undertake a review, especially in the case of Amendment 165 from the noble Lord, Lord Berkeley. The Government are concerned that this amendment sets out, without consultation or regard to practicalities, the terms of reference and timing of such a review. We are also concerned that the amendment does not fully grasp the range and complexity of the review which the Government would be required to undertake. Nor, might I suggest, does it consider who is best placed to conduct such a review—the Government, an independent body such as the Law Commission, or an expert panel.
Secondly, I point out the announcement of a review of driving offences and penalties in May 2014 by the then Secretary of State for Justice. The Government did conduct a review; I hope that goes some way towards answering the question from the noble Lord, Lord Rosser. As part of that internal review, we considered a range of concerns that had been raised by campaigners, victims and parliamentarians. In the debate on an earlier group of amendments, my noble friend Lord Wolfson committed to writing to the noble Baroness, Lady Jones of Moulsecoomb, and some of those concerned participants.
The review focused on the most serious offences that can result in death or serious injury, and the results are what we see now in Clauses 65 and 66 of the Bill. As we have already debated, the Bill includes provisions that will increase the maximum penalty for causing death by dangerous driving from 14 years’ imprisonment to life—again, I refer to the points made by the noble Baroness, Lady Jones of Moulsecoomb. Provisions in the Bill will also increase the maximum penalty for causing death by careless driving while under the influence of drink or drugs from 14 years to life imprisonment and create a new offence of causing serious injury by careless driving. These provisions have been long awaited, and they have widespread support. Those reforms also fit within the existing framework of road traffic offences. They are therefore consistent and proportionate responses and should be allowed to take effect before any further reform is considered.
I take note of the list that the noble Baroness, Lady Randerson, gave of other things she thinks should be considered, but, without going into detail on all of it, I will make just a couple of points. First, I mentioned in the group of amendments on pedicabs that there is a consultation on cycling which began in 2018 and is due to report towards the end of this year or the beginning of next year. I hope that will help to answer some of those questions about the changing nature of cycling. On e-scooters, they are of course illegal unless they are hired and, if the rider is not insured, they can be impounded. I take the points made by the noble Lord, Lord Russell, about enforcement very seriously—these rules are not being enforced, and they perfectly well should be. I also say to the noble Lord that I am extremely jealous of his mother’s red MG—my mother had a Ford Popular, and we used to have to hide on the back seat.
My last point is simply this: while we do not think it is necessary to legislate to require such a review, or to set out its terms of reference in such a restrictive way, the Government are not ruling out a wider review of  road traffic offences in the future. As the noble Baroness, Lady Randerson, said, there will be a whole bunch of considerations when we have the advent of technologies such as autonomous vehicles—not just road traffic considerations but things such as who insures them, how you insure them, and whether you are insuring the car, the driver, the software or the hardware. There are a whole variety of different implications. We will, of course, keep the law under review both in terms of specific offences and where it is necessary to reform the structure of the legislation. But having had this opportunity to debate this issue, I invite the noble Baroness, Lady Randerson, to withdraw her amendment.

Baroness Randerson: I thank the Minister for his response and other noble Lords for participating in this short debate. I have to smile a little to myself because the Minister seemed to argue that the amendment would have been more acceptable if it had been more prescriptive and had tied the Government’s hands more. However, I realise that the Government have to find reasons not to accept an amendment.
I take issue with the haphazard approach of the Government’s transport-related clauses in the Bill. They are a series of unrelated issues plucked from dozens that need attention. I understand the problems that the police have in attempting to enforce the rules on e-scooters. E-scooters are sold in most cases with effectively no reference to what is legal and what is not. If a police force in area A has a pilot project and area B immediately next door does not, it puts the police force in area B in the difficult position of enforcing a series of rules about illegality that do not apply immediately next door or down the road. There are so many pilot projects that they have undermined attempts by the police to enforce the law.
Having said that, I hope the Government will bear in mind the need for review on so many fronts, and I will, of course, withdraw the amendment.
Amendment 159 withdrawn.

Amendment 160

Lord Paddick: Moved by Lord Paddick
160: After Clause 76, insert the following new Clause—“Power of police to stop vehicles(1) Section 163 of the Road Traffic Act 1988 is amended as follows.(2) In subsection (1), after “vehicle” in the second place in which it occurs, insert “, and switch off the engine,”.”Member’s explanatory statementThis new Clause to the Road Traffic Act 1988 would require a person to switch off their engine after being stopped by a constable in uniform or a traffic officer, and make it an offence not to do so.

Lord Paddick: My Lords, if the Committee will forgive me, I was not quick enough off the mark in the previous group when we were considering exceptional hardship. The Minister said that the Government opposed the amendment because it limited judicial discretion. As we will see in upcoming clauses, clause after clause of this Bill limits judicial discretion by means of primary legislation. I will remind the Government of what the Minister said in relation to that previous amendment when we come to those clauses.
I move Amendment 160 in my name and, in so doing, express my thanks to the Police Federation for raising this issue and for its assistance in drafting the amendment. Section 163 of the Road Traffic Act 1988 gives powers to the police to stop vehicles, which goes back to the previous group where we were discussing drink-driving. Section 163(1) says:
“A person driving a mechanically propelled vehicle on a road must stop the vehicle on being required to do so by a constable in uniform or a traffic officer.”
Section 163(3) says:
“If a person fails to comply with this section he is guilty of an offence.”
Similarly, Section 164 provides the power to require the driver to produce their driving licence. This poses several real dangers and unnecessary risks to our front-line police officers while dealing with such driver checks. The problem with the current legal framework is that an officer has to leave the relative safety of their own vehicle to make any request or to examine the driving licence. The driver of the stopped vehicle is under no obligation to get out of the vehicle or to switch off their engine.
The current law places officers in a vulnerable position in relation to the driver and occupants of the vehicle. They are permitted to remain in the vehicle to either flee when the officer is most vulnerable or even to use the vehicle as a weapon, as the noble Baroness, Lady Jones of Moulsecoomb, said in an earlier amendment. This is a common occurrence, even in my professional experience, where drivers try to flee after you have got out of the police vehicle and spoken to them. The risk to the officer would be minimised by creating an obligation for the driver of the stopped vehicle to leave the vehicle, but it is also important to ensure others who may be present in the vehicle are not able to then drive the vehicle away, or at the officer, after the original driver has got out.
This amendment is intended to highlight this gap in the law, although I accept that it is not suitable as drafted. I am grateful to my noble friend Lady Randerson for pointing out that electric cars, for example, do not have an engine that can be switched off in the traditional sense of the words and that other vehicles do not require a set of keys to be in the ignition to start the engine. However, noble Lords will see exactly what the problem is and how, potentially, the risk to police officers could be minimised if, for example, the driver was required to immobilise the vehicle and get out of the car, unless there was a reasonable excuse for not doing so, for example if the driver was disabled. I look forward to a sympathetic response from the Minister, and I beg to move.

Baroness Jones of Moulsecoomb: My Lords, I am sorry, but I am going to speak on this if the noble Lord, Lord Berkeley, is not going to.

Lord Berkeley: No.

Baroness Jones of Moulsecoomb: I feel very strongly about this. It offends my sense of justice that people who do hit and runs never pay for their crime. They are a menace to society, with only six months’  maximum sentence for leaving someone for dead having hit them with a car and, of course, the figures are going up year after year—

Lord Paddick: I think the noble Baroness may be speaking to the next group rather than this group.

Baroness Jones of Moulsecoomb: I am. Sorry, ignore that. Strike that from the record. I will come back to that.

Lord Ponsonby of Shulbrede: My Lords, I was interested in the explanation of this amendment by the noble Lord, Lord Paddick. As he rightly said, there are all sorts of potential issues—one can think of electric cars—and reasons this may not be workable as it has been drafted. Nevertheless, the noble Lord made the point about the vulnerability of police officers when they are in this situation, and of course the vast majority of cars do use conventional engines at the moment.
The other point made by the noble Lord is that a driver is under no obligation to get out of the vehicle. I have to say that, in the current circumstances, if there was a lone woman in the vehicle and a lone police officer asked her to step outside, that may be problematic. Nevertheless, that is not the burden of the noble Lord’s amendment. He has raised an interesting point; we want to protect police officers in vulnerable situations, and I look forward to the Minister’s reply.

Baroness Williams of Trafford: My Lords, if I understand the noble Lord, Lord Paddick, correctly, this amendment is aimed at improving the safety of police officers at the roadside. I share his concerns and want to reassure him that the safety of police officers is vitally important to this Government, as is demonstrated by our programme of work on the police covenant. I will not echo the arguments made to the noble Lord by the noble Baroness, Lady Randerson, on the defects of his amendment, but I want to say that we are committed to ensuring that the police have the powers that they need to protect people.
The British model of policing is based on consent, and the exercise of police powers, including the Section 163 power, needs to be transparent, fair and legitimate to ensure that the public can remain confident in policing. I am supportive of the intention behind the extension of this power, but more evidence and consultation are needed to demonstrate that it would provide benefits to officers’ safety and build support for the effectiveness and legitimacy of the proposal to extend the power. I can say to the noble Lord that we will work closely with the National Police Chiefs’ Council, the College of Policing and the Police Federation to explore these issues further and consider what more can be done to improve officer safety at the roadside. On that basis, I hope that he will withdraw his amendment.

Lord Paddick: I thank the noble Lord, Ponsonby of Shulbrede, for his support in principle. I think it would be problematic if the lone female driver was asked to get into the police vehicle, but I am not sure that the female driver would be in danger by getting out on to the roadside.
I am very grateful to the Minister for her support for the intention behind the amendment. As I acknowledged, more consultation is required, and I am very grateful that the Government are prepared to discuss these issues further with the National Police Chiefs’ Council and the Police Federation. On that basis, I beg leave to withdraw the amendment.
Amendment 160 withdrawn.

Amendment 161

Lord Paddick: Moved by Lord Paddick
161: After Clause 76, insert the following new Clause—  “Failing to stop or report accidents involving actual or potential serious or fatal injury (1) After section 170(4) of the Road Traffic Act 1988, insert—“(4A) A person who fails to comply with subsection (2) or (3) when he knew that the accident had caused serious or fatal personal injury, or where he ought reasonably to have realised that it might have done so, is guilty of an offence.”(2) In Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (prosecution and punishment of offences: offences under the Traffic Acts), after the entry relating to an offence under RTA subsection 170(4), insert the following—“RTA section 170(4A)Failing to stop and give particulars after accident involving actual or potential serious or fatal injury or to report accidentOn indictment14 yearsObligatoryObligatory6-11”(3) After section 34(3)(d) of the Road Traffic Offenders Act 1988, insert—“(e) section 4A (failing to stop and give particulars after accident involving actual or potential serious or fatal injury or to report accident)”.”Member’s explanatory statementThis amendment creates a new offence of failing to stop or report accidents where the driver knew that the accident had caused serious or fatal injury, or where he ought reasonably to have realised that it might have done so, with a maximum sentence of 14 years custody.

Lord Paddick: My Lords, Amendment 161 is in my name, supported by the noble Baroness, Lady Jones of Moulsecoomb—as we already know. I am grateful to Living Streets, British Cycling, RoadPeace, Cycling UK, and the Road Danger Reduction Forum for their joint briefing and suggested amendment on this issue.
Currently, the maximum penalty for the offence of failing to stop to report accidents is a six-month custodial sentence. This may be appropriate in cases where someone has simply driven off after scratching the paintwork of someone else’s parked car, but not when someone has been left for dead by the roadside.
The briefing provided by two noble Lords cites the case of Scott Walker, who was struck and killed by a driver who was driving without insurance, failed to stop at the scene of the collision, failed to report the incident and then tried to conceal his involvement by having his car repaired to cover the damage. The sheriff who heard the case said that the maximum sentence of imprisonment
“would not adequately reflect the gravity of the offence.”
The parliamentary petition calling for tougher laws when someone dies and the driver fails to stop attracted more than 104,000 signatures.
Section 170 of the Road Traffic Act 1988 as amended requires:
“where, owing to the presence of a mechanically propelled vehicle on a road or other public place, an accident occurs by which … personal injury is caused to a person other than the driver of that mechanically propelled vehicle … The driver of the mechanically propelled vehicle must stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address and also the name and address of the owner and the identification marks of the vehicle … If for any reason the driver of the mechanically propelled vehicle does not give his name and address under subsection (2) above, he must report the accident … A person who fails to comply with subsection (2) or (3) above is guilty of an offence.”
The amendment would add a new subsection creating a new offence, where the driver knew or ought reasonably to have realised that the accident had caused serious or fatal personal injury, with a maximum penalty of 14 years’ imprisonment. As with the previous group, this amendment is intended to highlight the inadequacy of existing legislation.
Again, I accept that the wording may not be right; for example, the Road Traffic Act would need to be amended throughout, as other noble Lords have said, replacing the word “accident” with “collision” or “incident”, as some of these incidents involve deliberate acts, rather than being accidents, and the 14-year term may not be the right one. But the law is inadequate when someone fails to stop after a collision involving death or serious injury. I beg to move.

Baroness Jones of Moulsecoomb: My Lords, as I said before, I support this amendment very strongly because hit-and-runs are a menace.
One of the problems is that the families who suffer from having somebody killed or injured rarely feel they get justice. That seems completely wrong. This amendment would mean that a judge has available the range of sentences necessary to reflect the severity of the offence. Sometimes the existing six months might be enough, and other times 14 years in custody would be the only option that can punish the wrongdoing and deter others from driving away from a serious collision. I am not big on increasing prison sentences, because I think we have far too many people in prison already, and many of them are there for the wrong reasons. But in this case, when you deliberately harm a person, prison is the place for that sort of violent person.
Judges should have the option of a lifetime ban for people who hit and run. There is no excuse for fleeing the scene—it is trying to escape justice. People should not be back on the road once they have done that.  Hit-and-run is a cowardly thing; it is an attempt to escape and to not admit that you have done something wrong. Quite often, it can mean the difference between life and death for the person you have hit. This is a valuable amendment and will mean justice, not only for victims but their families and friends.

Lord Berkeley: My Lords, I have added my name to this amendment. One of the most telling statistics is that there were 28,000 hit-and-run collisions in 2017, all involving failure to stop and report collisions that involved actual or potential serious or fatal injury. This number had increased by 43% since 2013—in only four years. That is a very significant increase and, as other noble Lords have said, the current maximum penalty for a hit-and-run collision is six months in prison which, as the noble Baroness said, might be all right in some circumstances, but not in others.
The other issue is that, now that most people have mobile phones in their cars, there should be a general duty to report collisions while at the collision scene. Yes, there are a few places in this country where there is not any signal, but very few compared to where there is; and if it is not possible, the driver or rider may subsequently report the collision and produce their insurance certificates, if appropriate, at a police station or to a constable. This should all be done within two hours of the collision, because 24 hours means that, if there were any risk of alcohol or drugs having an effect, that could be lost in that time. This is a really important amendment, and I would be interested if we could find some more up-to-date statistics on what has happened since 2017, because it is a very serious issue.

Lord Ponsonby of Shulbrede: My Lords, my right honourable friend Ben Bradshaw spoke to his amendment, which was along similar lines, in the other place, to increase the sentences for this type of offence from six months to a possible 14 years. I agree with most of the points made by the noble Baroness, Lady Jones, and particularly her opening point: in general terms, I do not like sentence inflation. This is a very large potential inflation in sentences. Nevertheless, I take the point that she and other noble Lords have made, that a maximum of six months in custody for failing to report a serious or fatal injury during a road traffic accident seems like an unduly light sentence for the most extreme cases.
We have heard reference to the petition; I understand that it will be debated in the House of Commons later this month. I have a question for the noble Lord, Lord Paddick. I would be interested to know how this would interact with existing sentences. For example, if a person has committed an offence causing serious injury or death by dangerous driving, would the expectation be that they would also be sentenced to a number of years for not reporting the accident? How would the two charges work in combination with each other? I have an open mind on these amendments, and I look forward to the Minister’s response.

Baroness Williams of Trafford: My Lords, as noble Lords have explained, Amendments 161 and 166 relate to the offence of drivers failing to stop. We know  that in a small number of cases, the failure to stop might be related to an event that leads to the death of, or serious injury to, another person, but in the vast majority of cases, convictions involve low-level traffic incidents. In an extremely small number of cases, there may not be any other evidence to connect the death or serious harm with the driver who fails to stop, meaning the only offence they have committed is that failure to stop. I understand the concerns raised, but these amendments potentially risk providing for a maximum custodial sentence of 14 years for failure-to-stop offences resulting in serious or fatal injuries in circumstances where there would not have had to be evidence of a causal link between the failure to stop and the death or serious injury.
What is more, these amendments cut across the basis for the current offence. I must stress that the offence of failure to stop and report is designed to deal with the behaviour relating to the failure to stop. The offence is not to provide an alternative route to punish an offender for a more serious but unproven offence.
Where there is evidence that the driver caused harm, there are a range of other offences, including causing death or serious injury by dangerous or careless driving, with which the driver can be charged. In these cases, the courts can treat the failure to stop as an aggravating factor that adds to the overall seriousness of the offending. Where there is evidence that the driver knew about the incident and took steps to avoid detection, they may be charged with perverting the course of justice, a common law offence that already carries a maximum sentence of life imprisonment.
Linking death or serious injury with a failure to stop as the cause would risk creating an unnecessary and unfairly severe offence. To take an example, where there was evidence of causing death by careless driving and failure to stop, the offender would face a maximum penalty almost three times higher for failure to stop than they would for causing death by careless driving—14 years compared to five years— even though the causing death offence requires proof of a fault in the standard of driving.
The law already imposes severe penalties for vehicle offences that lead to death or serious injury, but when doing so, a clear causal link must be proved between the driver’s behaviour and the outcome. The proposed amendment would essentially be equating, or in some cases exceeding, the seriousness of failure to stop with actual culpability for causing death or injury. That, as I have said but want to repeat, causes serious anomalies with other offences that could result in potential injustices, and it is why the Government cannot accept the amendment.
In relation to Amendment 166, which also seeks to amend the current offence, we are concerned by the potential impacts on what is a complex area of law. For example, it is unclear what impact replacing the word “accident” with “collision” would have; it might exclude incidents that are currently and rightly within scope of the existing version of this section. We also reiterate our objections set out above to the creation of the offence of failing to report where the collision caused foreseeable serious or fatal injury.
We are of course aware of the traumatic effects of such incidents, however rare. From what I have already said, it should be clear that this is a complex area, and any change to the law has to fit within the current driving offence framework. However, let me assure noble Lords that my ministerial colleagues at the Department for Transport understand the concerns that have been raised. I can assure the Committee that the Department for Transport is exploring options that could be pursued in this area, including but not limited to the available penalties and how the offence operates as part of long-term and wider work on road safety. I hope that, with those assurances, the noble Lord, Lord Paddick, will withdraw his amendment.

Lord Paddick: My Lords, I thank noble Lords for contributing to this debate, including the noble Baroness, Lady Jones of Moulsecoomb, who contributed twice. I thank her for her support. I agree in principle with what the noble Baroness and the noble Lord, Lord Ponsonby of Shulbrede, said about sentence inflation; we are not in favour of that. However, the Minister talked about anomalies and this clearly is one—where someone causes death or serious injury and fails to stop after an accident but where no other offences are disclosed.
This is from memory, but in the case of the MP whom the noble Lord referred to, I think the incident in his part of the world in the south-west was a case of somebody who hit something, someone wandering in the road for example, and therefore an offence of careless, reckless or dangerous driving was not appropriate. However, the driver knew that they had hit something or somebody and still failed to stop or call the emergency services.
This is not about punishing the manner of driving that has caused death or serious injury, but about the dishonesty of knowing that you have hit somebody and knowing, from the speed that you were doing, that the person is likely to have received serious injury and, because you have failed to stop, what could have been survivable injuries become fatal injuries, because medical aid is not provided immediately or within a short space of time. As the noble Lord, Lord Berkeley, said, almost everybody who has a car has a mobile phone, and with the extensive coverage of mobile phone signals there is no reason why immediate assistance cannot be summoned in most cases. As the noble Baroness, Lady Jones of Moulsecoomb, said, failing to stop after an accident of this kind can mean the difference between life and death.
In my opening remarks I said that I was not sure that 14 years was the right punishment, that it needs to fit within the framework of punishment. In answer to the question asked by the noble Lord, Lord Ponsonby of Shulbrede, there could be circumstances, such as the one that I have referred to, where offences other than failing to stop were not present. In those circumstances—for example, if somebody in foggy conditions wearing dark clothing in the middle of the night stumbles on to a roadway and is hit by a car, and the person driving knows that they have hit that individual but fails to stop—the only offence could be the failure to stop, yet it could have fatal consequences for the pedestrian involved.
I am grateful to the Minister for saying that colleagues in the Department for Transport will be looking at this issue, but it goes to the heart of the previous group on how there needs to be an overall look at road traffic offences in the light of changes that have taken place. The Minister also talked about difficulties that might be created because the amendment refers to collision versus accident, whereas other parts of road traffic law refer to accidents, but I did say that throughout road traffic legislation “accident” needs to be changed to “collision”, because some of the incidents are not accidents. However, it is encouraging that the Minister’s colleagues in the Department for Transport have agreed to look at this. On that basis, for the time being I beg leave to withdraw the amendment.
Amendment 161 withdrawn.
Amendments 162 to 169 not moved.

Amendment 169A

Lord Berkeley: Moved by Lord Berkeley
169A: After Clause 76, insert the following new Clause—“Damage to guided transport structures(1) A driver whose vehicle causes delays to operations of, or damage to, a guided transport structure or its systems is liable, on conviction of careless driving or a more serious offence, to at least 6 penalty points to be endorsed on the driver’s driving licence regardless of circumstances.(2) A haulier which is responsible for commissioning the journey of the driver is liable to—(a) a fine of up to £50,000,(b) the costs of reconstruction and other costs incurred by the owner of the structure, including compensation to its customers, train operator companies and other third parties, for delays and cancellation or damage to guided transport services.(3) In this section, “guided transport structure” means a structure which supports a guided transport system, including a railway structure.”

Lord Berkeley: My Lords, in moving this amendment I shall speak to Amendments 169B and169C tabled by the noble Earl, Lord Atlee.
These amendments came as the result of a truck hitting a railway bridge near Plymouth about a month ago. It affected train services to the south-west quite severely, and I had a discussion with the head of safety at Network Rail to find the cause and what could be done to avoid it happening again. I got some very interesting information, which I will share briefly with the Committee.
As noble Lords probably know, an articulated lorry went under a railway bridge. Interestingly, the road was sloping upwards, so the top of the lorry hit only the far side of the bridge, because the clearance was less than when he went in. When I looked at it further with Network Rail, I was informed that there was an average of seven bridge bashes a day on the network; some are serious and others are not.
Equally serious was that Network Rail had done a bit of research with the drivers who drive these heavy goods vehicles, and around 50% of them do not know  the height of their vehicle. With all the electronic gadgetry that we have around today, that is pretty unacceptable. Then again, the driver who was driving this particular lorry was on his fourth drive with a truck that day, and each truck was different. It was clear that he was not given proper instructions as to the height of his vehicle or the route he should take.
We may think that it is not terribly important and that there is a shortage of HGV drivers anyway, but if a truck hits a bridge of a particular type—a steel bridge, say—there is a chance that it could move the bridge sideways in relation to the track, which in turn will cause a train to derail. I do not want to get into what happens when a train derails, but it is not a pleasant thing to think about. I suggest that the industry has to find a solution to this problem.
First, one has to reflect on who is responsible. Is it the driver’s fault? He or she—it is usually a he, but it could be a she—should know the height of the truck they are driving, or more likely the height of the trailer behind the tractor unit they are driving. A route should be given to them in advance, and it should of course show the height limits of any structure they have to go under.
Can you blame the driver in these circumstances, when he is under great pressure to get there on time and everything? What about his owner, or the person who commissions the journey? I call them the haulier. Should they not be obliged to tell the driver and give him a route, including electronically? This touches on to the amendments of the noble Earl, Lord Attlee. Should Network Rail and the people who produce the electronic maps and everything not have a duty to put the electronic information on the equipment that the driver uses? It would be nice to think that the driver would actually read it. One hopes that would occur.
There needs to be something to dissuade the haulier and the drivers from going under these bridges, possibly risking a pretty serious accident. We started to think: how could you dissuade them? What about penalties? The problem is that if a serious accident—or a serious incident; it is not an accident any more, but the noble Baroness has gone now—moves the bridge sideways, you have the delays to trains that cost a lot of money, which is normal in the industry, you have the repairs to the bridge and the delays and compensation to passengers, and there may be worse things if it is a serious accident, with damage to the trains and things like that.
Noble Lords will probably have seen the incident that happened at Salisbury about a week ago. It takes a long time to recover these trains, and probably write them off. This is a probing amendment because Ministers may have a better solution, but our feeling is that the driver needs to get some penalty if he or she is found liable, with some penalty points. However, it is probably the haulier who commissions the journey who should be capable of doing it properly, and should therefore receive a fine. What we put in subsection (2)(b) is of course an enormous cost, which I suggest could be recovered only from insurance.
I have just one other point. In subsection (3), it is important to remember that it may not be a Network Rail railway bridge in future; it may be an Underground  railway bridge or a guided transport structure. The key is that it will damage something that runs above the bridge on some kind of a guidance, which, if damaged, would cause an incident, an accident or something like that.
I support the amendment in the name of the noble Earl, Lord Attlee. He will probably be a bit surprised, but I support it because it puts the onus on all parties to come up with a solution. This has to stop. There are seven incident a day in this country; somebody is going to get badly hurt sometime, and I do not think that Network Rail, although it is trying very hard to persuade people, is in the mood at the moment to be the prosecuting authority to put everything right. An amendment something like this one would help Network Rail, and help Ministers as well. On that basis, I beg to move.

Amendment 169B (to Amendment 169A)

Earl Attlee: Moved by Earl Attlee
169B: After Clause 76, in subsection (1), after the word “liable,” insert “provided that the conditions in subsection (4) are met,”

Earl Attlee: My Lords, I am grateful to the noble Lord, Lord Berkeley, for moving his amendment. On its own, it would be unacceptable because it would unfairly penalise the driver of the lorry. The Committee will be aware that we are already exceptionally short of HGV drivers; I think the noble Lord touched on that. It would also be unfair to the operator because the incident may have been caused by the misconduct of the driver deviating from the appropriate route. I must tell the Committee that it is not always easy to determine the overall height of a vehicle. Mistakes can be made. The driver can be incorrectly informed of the overall height of the piece that he is carrying.
My amendments to Amendment 169A would require technology to be in place before the new penalties are available. Surely we can have electronic systems put in place to make these incidents entirely avoidable. Such a system would warn the driver, before he or she gets to the point of no return, that the vehicle will not safely pass under a bridge. This would enable the driver to take their vehicle on an alternative, safe route. With the data provisions of my amendment, it would also be possible for manufacturers to provide automatic GPS-facilitated warning systems; however, that system would rely on correctly knowing the overall height of the vehicle, whereas my proposals for static infrastructure would not. I will not weary the Committee at this late hour with further technical details.
I am grateful to the noble Lord, Lord Berkeley, for supporting my amendment to his amendment. He talked about the inconvenience that these incidents cause. He is of course correct. Most incidents involve large van-type vehicles and normally the bridge wins, although careful and time-consuming post-incident technical checks may still be necessary. That is what causes the inconvenience.
I operate a tank transporter on behalf on the REME Museum. The tank weighs 50 tonnes and the loaded transporter is 14 foot high. If the tank hits the railway bridge, the tank wins. If the train arrives shortly thereafter, a serious incident will inevitably arise. The reason why  abnormal loads rarely hit railway bridges is that these movements are carefully planned in advance, in conjunction with the various authorities. Generally speaking, unauthorised route variations do not take place. However, heavy engineering equipment is also moved under normal construction and use regulations when it is not particularly heavy or wide. One day, a bridge will get hit hard by one of these loads. It is only a matter of time. An awful tragedy could then follow.
We can avoid this by agreeing to the amended amendment from the noble Lord, Lord Berkeley, or something like it. It may not be perfect but the Minister can attend to that. All we are asking is that he takes the steps to make sure that these incidents cannot take place. We have the technology in place. I appreciate that there is a difficulty in that Network Rail does not have any authority on the roads near the railway bridge, but the Minister will have to take the necessary powers to deal with that problem.

Baroness Randerson: My Lords, I thank the noble Lord, Lord Berkeley, for his introduction and the noble Earl, Lord Attlee. My noble friend Lord Bradshaw added his name to the amendment from the noble Lord, Lord Berkeley, but apologises because he is unable to be here this evening.
It strikes me that it is clearly not in the interests of hauliers or HGV drivers to hit a bridge. It costs a great deal of money all round. It is probably proportionately more damaging for a small haulage company that experiences damage to its vehicle, many hours of lost time and so on than it is for the train operating company. However, I have been on a Great Western train that was held up for some hours as a result of a bridge strike. If you multiply the two or three hours that we sat there by the number of people on the train, the cost of the whole incident becomes considerable.
Why is it is happening so often? Is it because there is not enough training of drivers? If that is the case, I am very concerned because the test for new drivers is becoming simpler and more streamlined, so things are not going to get better there. Is that there is a lack of adequate signage? Is it that the signage is in the wrong place? It has to be well in advance of the bridge because drivers cannot just stop on a sixpence in a large lorry. Is the signage not maintained or inspected? It would be interesting to hear from the Minister the solutions to this problem and how the situation can be improved. Clearly, seven incidents a day are not desirable and really should not be happening in those numbers. There is a particular problem with equipment such as cranes that are loaded on to a flatbed lorry, because the driver may not know the height of this particular lot of equipment.
Noble Lords have suggested lots of solutions. I am interested in the Government’s response.

Lord Coaker: My Lords, it is good to be back from the Armed Forces Bill to join you all again for this group of amendments. I start with a comment that the noble Baroness, Lady Randerson, made about the haphazard nature of the amendments before us. This is the last set of amendments on Part 5 of the Bill on road traffic offences yet, despite being haphazard,  some really important amendments have been proposed. That demonstrates to the Government that there needed or needs to be a new road traffic Act, which would bring together all the various comments that have been made plus numerous others that people would make. We heard on a previous group about a review of existing traffic offences: some are out of date, and some that did not exist a few years ago should have offences against them. I make that opening remark to the Minister, as he might wish to say that to his colleagues.
My noble friend Lord Berkeley did us a favour by bringing forward these amendments. It is easy to scoff at railway bridges, but we have heard that there are seven incidents a day and that 50% of drivers do not know the height of their vehicles. An issue raised by these amendments clearly needs to be considered. The least we want from the Minister is that he takes away these comments and speaks to his colleagues at the Department for Transport or wherever about them.
The noble Earl, Lord Attlee, is also right in saying that, in trying to solve one problem, you do not want to unfairly penalise another group—in this instance, lorry or other drivers. You have to be careful about the way that legislation is drafted and unintended consequences, so his amendments are important as well.
This is yet another serious amendment that has been put forward to deal with a very real problem, to set against all the other amendments that have been put forward which deal with serious issues on our roads. The legislation needs to be updated. This is a Christmas tree of a Bill. Part 5 on road traffic needs a separate Bill, as has been demonstrated by the debate this evening. I hope, at the very least, that the Minister will take that back to his colleagues.

Lord Sharpe of Epsom: I am grateful to the noble Lord, Lord Berkeley, and my noble friend Lord Attlee for explaining these amendments. I reassure them and other noble Lords that the Government take this issue seriously and think it important. We recognise the serious risk to the travelling public that results from drivers striking and damaging bridges.
It is my understanding that this amendment seeks not to create a new offence but instead to create a new and specific penalty, for striking guided transport system structures, most notably railway bridges, to be applied to broader offences such as careless driving. I do not think that is needed. The penalties available for the offences for which a driver can already be charged in these circumstances are adequate to reflect the seriousness of the offence. The offences include careless, inconsiderate and dangerous driving or, where appropriate, drink-driving or drug-driving. For example, an offence of careless driving attracts an endorsement of three to nine penalty points on the driver’s licence, an unlimited fine, and a discretionary disqualification from driving for such period as the court thinks fit. Damage to property is a factor in the sentencing guidance indicating greater harm, which can lead to a higher sentence. If a driver were found to be under the influence of drink or drugs, the penalties available would include custodial sentences, unlimited fines and driving disqualifications.
As my noble friend will be aware, warning and regulatory signs already exist to indicate low bridges and to ensure that drivers are given information about alternative routes in time to adjust their journeys. I take my noble friend’s points about routes and so on, which he made most forcefully. Those signs are prescribed in the Traffic Signs Regulations and General Directions 2016 and can be used by local authorities without reference to the Department for Transport. Local authorities are responsible for placing traffic signs on their roads, and the Department for Transport provides advice to them on the use of these signs in the Traffic Signs Manual. Disobeying a regulatory sign indicating a low bridge is already an offence that attracts an endorsable fixed penalty notice and may lead to the disqualification of the driver. Network Rail can reclaim some of the cost of repairing any damage from the insurer of the vehicle that hits the bridge. The Government are satisfied that the existing offences, penalties and route to a claim for damage are sufficient.
I am afraid that I cannot answer the questions from the noble Baroness, Lady Randerson, about why this happens so frequently. I imagine there are a whole variety of factors. As to the concerns from the noble Lord, Lord Coaker, I will of course take those back; we need at least to understand this issue a little better, so I will commit to doing that. That being the case I urge the noble Lord, Lord Berkeley, to withdraw his amendment.

Earl Attlee: My Lords, I am afraid the Minister’s response is a little disappointing. I was hoping he would say a bit more about what use we could make of technology and whether Network Rail would experience any difficulties in putting some of its infrastructure, say, half a mile away from its bridges. Does Network Rail have the power to put infrastructure on the road system, perhaps half a mile away from a bridge, in order to provide a warning for a driver that he is over height —something similar to what is done at the Blackwall tunnel?
The noble Baroness, Lady Randerson, talked about training. It occurred to me that we could make it a part of HGV driver training that the driver of a lorry was required to compare his vehicle’s height to that of any infrastructure that he went under. On approaching a railway bridge he could say, “My height is 14 feet and the height of the bridge is 15 feet, so we’re fine.” If every time he went under a bridge he considered orally whether he could get under it, that might be a good starting point and might actually make a difference.

Lord Berkeley: My Lords, I am grateful to all noble Lords who have contributed and to the Minister for his response. I am afraid my view is that, however much he may say there is existing legislation, it is not working. That is clear. It is quite difficult for a driver to find the height of his vehicle. I spent several decades working in the rail freight sector, and trying to get a container on a rail wagon under a road bridge going over a railway was difficult because all these vehicles, be they rail or road, have suspensions so, depending on the load, the wagon or vehicle goes up and down. Still, given the rules that affect the railway sector, what we have in the road sector is frankly pretty weak.
I fully support the idea of the noble Earl, Lord Attlee, that there should be much greater emphasis on putting the information on to electronic GPSes, which I think most lorries have. One has to assume that the driver can read; that is probably not always the case but it is something to start from. He asked whether Network Rail had the power to build something away from the network. My answer is: in most cases, no. It would have to talk to landowners, seek planning permission and so on, although putting up a post with an electronic beam going across would be all right. On the continent, people do something rather better, and in France it is particularly evident: on a low bridge there is a steel structure, a portal frame, with bells and spikes on. It is clearly marked with its height, but if you see something up ahead with spikes and you are driving a lorry with rather a valuable load, you will probably stop and think before going through it. A few of those on the worst-offending bridges would be quite good.
Lastly, I suppose, I hope that the Minister will encourage Network Rail to take proceedings to reclaim as much of the cost as seems relevant, because some of them behave like a good old-fashioned nationalised industry and say “Well, you know, this is one of those things: let’s try to get a bit back.” They should be quite aggressive about it, while making sure that their own information is on these electronic guides and maps and everything like that.
I will look carefully at what the Minister says, and we may come back with something on which to seek a meeting before Report. I am conscious that the wording in my amendment is rather amateur, and after listening to what he has said it would be good to talk to him and Network Rail again, as well as to other colleagues, to see whether we can come up with a solution that encourages and educates but also takes action against people who do not do as they should. On that basis, however, I beg leave to withdraw the amendment.
Amendment 169B (to Amendment 169A) withdrawn.
Amendment 169C (to Amendment 169A) not moved.
Amendment 169A withdrawn.

  
Clause 77: Diversionary and community cautions

Amendment 169D

Lord Falconer of Thoroton: Moved by Lord Falconer of Thoroton
169D: Clause 77, page 72, line 31, at end insert—“(6A) Before this section (other than this subsection) may be commenced the Secretary of State must by regulations amend subsection (6) to list all excluded offences on the face of the Act.(6B) The Secretary of State may by regulations amend the list of excluded offences.”Member’s explanatory statementThis, along with another probing amendment to Clause 99 in the name of Lord Falconer of Thoroton, would list the excluded offences on the face of the Bill.

Lord Falconer of Thoroton: We move to Part 6 of the Bill, which is important. It creates two new types of caution: diversionary cautions and community cautions. These are described by the Government as
“the least onerous types of disposal a person can obtain for offending.”
Both types of caution must have one or more conditions attached to them. These can include requirements to do unpaid work, attend a specified place for a specified purpose, and pay a financial penalty.
This is an important part of the Bill. We are reaching this stage of the debate at 11.12 pm, which is one hour and 12 minutes after our normal stopping time. We have, I am very happy to say, the noble Baroness, Lady Finlay of Llandaff, in the Chair, but she is not permitted to speak on issues; she may only call speakers and announce whatever the Motion may be. There is not one Cross-Bencher here, apart from the noble Baroness. There is only one Back-Bencher here for this debate on the introduction of two important new measures into the criminal justice system. It is a mockery of proper consideration.
The proper way for the Government to deal with this is not by extending the debating hours to a point where very few noble Lords take part. They should instead make extra days available. That is the consequence of having a Bill like this, which lays open to debate the whole criminal justice system. We should not do this. I understand that it is proposed that on Wednesday the Committee sit for another three hours beyond its normal stopping time. If the Government wish to hold the reputation of the House up for scrutiny, they should not do this; they should make proper arrangements.
Turning to the amendment itself, the first group we deal with in Part 6 relates to the delegated powers. I remind the Committee, which has been told this on a number of occasions, that the Delegated Powers and Regulatory Reform Committee took a very unfavourable view of this.
Let me add just one other point about the so-called scrutiny that is now going on: there is not one official in the Box to provide assistance to the Minister. I have no complaint about that, but it is in my experience unprecedented.

Lord Wolfson of Tredegar: Just for the record, and because the officials have worked extremely hard, I have a WhatsApp group with them. In fact, I have been doing all this work without officials there. They are on the ball; they are online; they are providing assistance.

Lord Falconer of Thoroton: I am very glad to hear that. It is the first time in my experience—and I am not complaining, because the officials have worked incredibly hard on this—that the Box is entirely without officials.
To go back to the debate about delegated powers, this is what the Delegated Powers Committee said in general about this:
“We are particularly concerned that the Bill would … allow Ministers—and even a non-statutory body—to influence the exercise of new police powers (including in relation to unauthorised traveller encampments and stop and search) through ‘guidance’ that is not subject to Parliamentary scrutiny; … leave to regulations key aspects of new police powers—to restrict protest and to extract confidential information from electronic devices—that should instead be on the face of the Bill; and …allow the imposition of statutory duties via the novel concept of ‘strategy’  documents that need not even be published … We are disappointed that the inclusion of these types of delegations of power—on flimsy grounds—suggests that the Government have failed when preparing this Bill to give serious consideration to recommendations that we have made in recent reports on other Bills.”
In relation to this group of amendments, the committee makes complaint about three sets of delegations. The first is in relation to what could be suitable for community cautions. As I indicated, community cautions are for less serious offences. The Bill provides that they cannot be given for the most serious, indictable-only offences, but it gives the Secretary of State power to determine by affirmative procedure regulations the other offences for which they cannot be given.
The Government put forward a memorandum to justify this approach which said as follows:
“The list of offences which may not be suitable for”—
a community caution—
“is likely to change regularly”
and
“will be subject to continual updating and changing which makes it more suitable for secondary legislation”.
The Delegated Powers Committee report states:
“The Memorandum acknowledges that excluding offences from a community caution disposal ‘will have a significant impact on offenders, victims and the public’. It states that the affirmative procedure ‘is considered appropriate as it enables Parliament to debate the details of the restrictions [on community cautions]’.”
The Delegated Powers Committee report says that the Government are relying on a comparison with Section 130 of the Sexual Offences Act 2003 and then establishes, clearly rightly, that comparison with that Act is misguided and wrong. It says that the Government should follow the 2003 Act, but accurately and not inaccurately. What the Sexual Offences Act 2003 does is put in the Bill the excluded offences but gives power for them to be amended from time to time. Our amendments would follow the Delegated Powers Committee’s recommendations. I hope that the Government will feel able to accept that. If the noble Lord could indicate that, it would shorten that bit of it—sadly not.
The next group of problems is the conditions that are attached to a caution. A diversionary caution or a community caution must have one or more conditions attached to it. These can include requirements to carry out unpaid work, to attend a specified place for a specified purpose, and to pay a financial penalty. The complaint that the Delegated Powers Committee makes about this is that you need only the affirmative procedure where you are increasing the penalties but not when you are decreasing them.
The Delegated Powers Committee report says:
“We consider that the Government’s justification for its approach”—
applying only when penalties are increasing and not when they are decreasing—
“is flawed because it focusses solely on the impact of increases or decreases on the rights of offenders and on operational resources and fails to take into account the significant effect that decreases are capable of having on the way in which the policy works—and that making the new cautions less onerous forms of disposal may be something about which stakeholders (including victims of crime) and members of both Houses may have legitimate concerns.”
Again, we agree with that. The committee continues at paragraph 75:
“Accordingly, we consider that both increases and decreases in the maximum number of hours of unpaid work or attendance, or the maximum financial penalty, that may be attached to a diversionary caution or a community caution merit the same level of scrutiny”.
That is simply to quote what the Delegated Powers Committee says.
The final group relates to Clause 129 and Schedule 13, which gives the courts power
“to review community and suspended sentence orders, and … to commit an offender to custody for breach of”
such orders. The memorandum that the Government presented to the committee says that
“the aim… is to improve offender compliance with community orders and suspended sentence orders and to reduce reoffending. This is achieved through a multi-agency approach with links to wider support services, one element of which is providing for close oversight by a court of particular sentences being served in the community”.
The intention is to pilot for an initial 18-month period, and that may be applied to different cohorts throughout the country.
The committee report points out:
“The Secretary of State is given power to specify, by negative procedure … categories of community orders and suspended sentence orders that qualify for the review process”—
and it sets out certain things they can take into account in relation to it. The report continues:
“Where regulations specify a category for the first time, there must be an initial pilot period of 18 months … Both regulations that specify a category for the purposes of a pilot … are subject to the negative procedure … The Government’s justification for this is that ‘the principle of the provisions is made clear on the face of the legislation, and the power is limited by the legislation such that it may only be used to apply the provisions to different courts and cohorts of offenders … These matters are administrative in nature’.”
That is what the Government said in their memorandum.
The Delegated Powers Committee disagreed with that, saying that
“the categories of persons and the offences to which the review process will apply go to the heart of the underlying policy. The power gives the Secretary of State maximum discretion … but with minimal scrutiny … We therefore consider that regulations that provide for a category of community orders or suspended sentence orders to be subject to the review process on an indefinite basis should be subject to the affirmative procedure.”
That is what our third set of amendments does in relation to that.
I apologise for taking so long to go through this, but these are important issues.

Lord Paddick: My Lords, I agree with the noble and learned Lord about the importance of this part of the Bill. Although the noble and learned Lord has just apologised for the length of his opening remarks on this group, I must warn the Committee that that was nothing compared with my opening remarks on the next group, if the Government wish to go there this evening.
The noble and learned Lord, Lord Falconer of Thoroton, is right to demand that the list of excluded offences for which the police cannot give a community caution is in the Bill. This is yet another example of why this Bill is a shell, lacking in sufficient detail for  noble Lords to give their consent to it. The Delegated Powers Committee agrees, as the noble and learned Lord has said.
He is also right that any changes to the maximum number of hours of unpaid work or attendance, or the maximum financial penalty that may be attached to a diversionary or community caution, should at least be subject to the affirmative resolution. But as the noble and learned Lord has said on previous groups, the House still has no ability to amend such an order. I will have more to say on that issue in a later group. Again, the Delegated Powers Committee agrees, as the noble and learned Lord has said.
Amendment 214B is about community orders and suspended sentence orders, and has, as far as I understand it, nothing to do with police cautions—I look for reassurance. I have no idea why it is in this group of amendments, other than that it is also covered by the Delegated Powers Committee’s report. I have no doubt that the noble and learned Lord is absolutely right about that as well, and the Delegated Power Committee agrees.
We support these amendments, mostly because they are right, and, in the case of Amendment 214B, because the noble and learned Lord is usually right.

Lord Wolfson of Tredegar: My Lords, I recognise that this group of amendments in the name of the noble and learned Lord, Lord Falconer of Thoroton, has come about because of recommendations from the Delegated Powers and Regulatory Reform Committee in its sixth report of the Session. It is a pleasure to discuss this matter, even at this hour. As to timing issues, I am sure the noble and learned Lord knows better than me with whom to take that matter up; I am not sure I am the correct post box for that.
I can assure the Committee that, even as the noble and learned Lord was speaking, I received a WhatsApp—I am not waiving privilege on all my WhatsApp messages—from the Bill team: “To reassure, we are here.” The team cannot answer back, but I can. I regret the way that the team’s their work ethic was impugned, unintentionally, I am sure.

Lord Falconer of Thoroton: I made it absolutely clear that I was not for one moment impugning the Bill team’s work ethic. I was saying, quite legitimately, that they are not here because it is so late at night. My learned friend the Minister makes a poor point in suggesting that I was impugning them. I have nothing but the greatest admiration for that Bill team, and he should not try to distract attention from the problems of debating this at this time of night with a remark like that.

Lord Wolfson of Tredegar: It has nothing to do with the hour. On every Bill I have done, I have had the Bill team on WhatsApp, whether it was the Domestic Abuse Bill at 3 pm or this Bill at 11.29 pm. The fact they are on WhatsApp and I deal with them remotely has nothing to do with the hour.

Lord Paddick: If I can adopt a previous role that I had as a police officer and come between the two parties to try to assist, I noticed that earlier this  afternoon when the Minister was leading on a group of amendments, there was nobody in the Box. I assumed that that must have been because the officials were working remotely. I have to say that on this occasion I agree with the Minister. Even at—I do not know what time it was, perhaps 4 pm this afternoon—there was nobody in the Box when it was an MoJ issue.

Lord Wolfson of Tredegar: We can move on. We do not need to raise the temperature at 11.30 pm. We have other things to argue about.
Let us get to the substance of this. The committee proposed a number of changes relating to the cautions and problem-solving courts measures in the Bill, as elaborated by the noble and learned Lord and the noble Lord, Lord Paddick. I shall make the central point that I want to make, because it goes to all the points that have been put down. I can assure the Committee, and in particular the noble and learned Lord, that the Government are looking at all the committee’s recommendations, which underpin these amendments, as part of our wider response to the committee, and we will revert to it in due course. I therefore hope that as time goes on, if I can put it that way, these issues will be highlighted, and I hope resolved to the noble and learned Lord’s satisfaction, but, if not, we can continue to discuss them.
I shall highlight just one matter, because I want to leave time for the noble Lord, Lord Paddick, to give us his full oration on the next group, if we have time for it. On Amendment 169D, on excluded offences in respect of community cautions, the committee, as the noble and learned Lord explained, recommended that these offences are listed in the Bill rather than set out in regulations. As he explained, regulations would then be made where further amendments became necessary.
With respect to the committee, we maintain the position that the offences that are to be excluded for the purposes of community cautions are to be made by regulations. We point out that this approach of using regulations to identify excluded offences mirrors the approach taken in the Criminal Justice and Courts Act 2015, which sets out that the simple caution, if I can call it that, may not be used in respect to offences specified by order made by the Secretary of State by secondary legislation. Just as there, so also here we believe that secondary legislation is the appropriate place for setting out the list of excluded offences, as the level of detail required may not be appropriate or suitable for the Bill. We suggest that that approach also allows sufficient time for essential engagement with stakeholders to identify those offences and to enable future changes to be incorporated without primary legislation.
I point out that the secondary legislation that we are talking about here is subject to the affirmative procedure, so the transparency that comes with that procedure will be maintained. I suggest that it would be a little bit clumsy and rare to use primary legislation for what has to be a fairly flexible approach to listing offences that should not be cautioned. We will of course discuss this carefully with stakeholders. The aim will be to bring an SI to Parliament that will be acceptable. I apprehend that I have not responded to the underlying point made by the noble and learned  Lord, because I said that we will respond to the committee, but I hope he understands the thrust of my response and that for present purposes he is able to withdraw the amendment.

Lord Falconer of Thoroton: First, in the light of the evidence given by the noble Lord, Lord Paddick, I unreservedly withdraw the suggestion that we are in any way disadvantaged by the officials not being in the Box. I thank the noble Lord, Lord Paddick, for bringing that to our attention.
What a disappointing response that was on the substance. First, I am grateful to the noble Lord, Lord Wolfson, for saying that there might be something more coming, although he did not indicate what that might be. We have had the report since September. Why has it taken so long to get to this? Secondly, in relation to the point which the noble Lord, Lord Wolfson, did address—about the offences that would be excluded from community cautions—the Delegated Powers Committee is saying, “Put your initial cut in the Bill”.
The noble Lord, Lord Wolfson, gave no reason why that was not to be done. He referred to the 2015 Act to which the Government had not referred when they put their memorandum to the Committee. I have not had a chance to look at the 2015 Act. It has only been mentioned now. Changing defence, as the noble Lord is doing, is always an indication of shambles on the part of the Government. What is the reason for not giving the Commons and the Lords the opportunity to debate the initial cut? It does not make the Bill too cluttered. It would not add much more than half a page. It is a ridiculous defence.
I hope that the Minister will have the time to think about it for when he comes back with the Ministry of Justice’s conclusions on this absolutely damning Delegated Powers Committee report. I beg leave to withdraw my amendment.
Amendment 169D withdrawn.

Amendment 170

Lord Paddick: Moved by Lord Paddick
170: Clause 77, page 72, line 34, leave out paragraphs (a) and (b)Member’s explanatory statementThis amendment, together with Lord Paddick’s amendment to page 72, line 37, ensures that a person may only be authorised to give a discretionary or community caution if they have been authorised by a prosecuting authority for those purposes; and requires a prosecuting authority to be satisfied that that person has received adequate training and is suitable to carry out those functions.

Lord Paddick: My Lords, I will also speak to Amendments 171 and 190 in my name. I will then move to Amendment 186A which I support. The noble and learned Lord, Lord Thomas of Cwmgiedd, who cannot be in his place, has asked me to speak to it on his behalf.
As I have said, I apologise in advance for the length of my remarks. The only consolations I can offer the Committee are that the Government wanted to group these amendments with other groups. Secondly, I do not take responsibility for the length of the remarks of the noble and learned Lord, Lord Thomas, which I have undertaken to read on his behalf.
These amendments are designed to do two things. First, they question the whole new system of police out of court disposals proposed in Part 6 of the Bill. These include, but are not limited to, cautions. Secondly, they attempt to try to make any system of cautions where conditions are attached more effective.
No doubt, the Minister will say that the new system of diversionary and community cautions is based on the existing system of conditional cautions. To some extent, the Minister may be right. Conditional cautions look very similar to diversionary and community cautions, except that, in the case of community cautions, failure to comply with the conditions of the caution cannot result in the prosecution of the offender for the original offence. The only way in which a recalcitrant offender can be punished if they fail to comply with the conditions of a community caution is for a financial penalty to be imposed instead. This can then be enforced through the courts. The Minister will tell me if I have any of this wrong. I look to the Minister for reassurance. Apparently, I am doing all right so far.
First, I cannot find any data on how many conditional cautions have been administered; the proportion of conditional cautions, compared with simple cautions where no conditions are attached; or conditional cautions as a proportion of other types of disposal. Considering the complexity of deciding on, arranging, administering and monitoring compliance with the conditions attached to a conditional caution, I can only imagine that most custody sergeants would avoid them like the plague, particularly when sending the case to court. Simpler, and arguably as effective, out of court disposals are available. Perhaps this is why the proposals in this Bill as drafted attempt to cut off any other form of out of court disposals. If agreed, these proposals would mean that police custody sergeants could avoid administering a diversionary or community caution only by deciding to take no further action or by sending the accused to court, despite an admission of guilt. I can assure the Committee that we would see a significant increase in these alternatives being adopted.
The House of Commons briefing paper 9165 on these proposals is illuminating. I am afraid that I am going to quote it at length, but I assure the Committee that it will be worth it. It states:
“The Government estimates the policy will cost a total of £109.19 million over ten years. It thinks the criminal justice system will incur extra operational costs of around £15.58 million per year. It also thinks the system will cost the police around £13.70 million to implement (over two years) … The actual costs are likely to be higher because some costly features of the proposed system, like proposed restrictions on the use of OOCDs”—
out of court disposals—
“for certain offences, were not present during the pilot.”
It goes on:
“The Government hopes the proposed system will help reduce reoffending. Available data does not suggest short-term reoffending rates are likely to go down. The evaluation of the 2014 pilot … found no statistically significant difference between the short-term re-offending rates of OOCD offenders”
in the pilot areas
“to those in comparable areas not using the framework.”
It continues:
“The Government also hopes the new system will improve victim satisfaction because more victims will be involved in the OOCD process.”
I have already cast doubt on that, because I am convinced that the police will “no further action” a lot more cases as a result. However, the paper states:
“It is true that more victims will be involved in the OOCD process under the new system, but this is unlikely to have a big impact on victim satisfaction rates. This is because the victim satisfaction rate for OOCD cases is already good. In 2019/20 84% of victims whose offender was issued a caution said they were satisfied with the police, a similar rate to victims whose offenders were charged (83%).”
The paper summarises by saying that
“the available evidence suggests the system … may result in a further decline in the use of OOCDs … is likely to cost more … is unlikely to have a major impact on the reoffending rates of offenders; and … may improve victim satisfaction but is unlikely to have a major impact.”
Can the Minister explain to the Committee why the Government are proposing to spend more to achieve nothing?
Turning to Amendments 170 and 171, a 2018 paper by Dr Peter Neyroud—a former chief constable of Thames Valley Police and now a distinguished academic—published by the University of Cambridge and commissioned by the National Police Chiefs’ Council, entitled Out of Court Disposals Managed by the Police: A Review of the Evidence, concluded:
“In order to be effective OOCD’s with conditions must be implemented well and three areas require particular attention: the eligibility screening of offenders; the needs assessment to match conditions to the offender; the setting and tracking of conditions”.
More specifically, he said:
“The result … was a significant degree of inconsistency and a substantial number of inappropriate and un-evidenced conditions. Whilst the provision of further training and more guidance improved the situation somewhat, the cost of … an investment within a more general implementation of OOCD’s with conditions would be prohibitive and, in any case, did not completely resolved the problems.”
On the issue of whether out of court disposals were more or less effective when they had conditions attached, he said, bearing in mind that this was a review of all the available evidence:
“Making a direct comparison between OOCD’s with conditions”—
both community cautions and diversionary cautions are OOCDs with conditions—
“and OOCD’s without conditions is difficult: none of the research makes this direct comparison.”
Let me summarise. The provisions in this Bill propose getting rid of all out of court disposals except for cautions, all of which will have to have conditions attached. There is no evidence that cautions with conditions attached are any more effective than cautions without them. Where conditions have been attached to cautions in the past, there was
“a significant degree of inconsistency and a substantial number of inappropriate and un-evidenced conditions.”
Amendments 170 and 171 suggest that only those adequately trained officers who are considered by the prosecuting authority to be suitable to decide on diversionary and community cautions can administer them. Amendment 190 is consequential.
The noble and learned Lord, Lord Thomas of Cwmgiedd, has Amendment 186A in this group, and apologises to the Committee that he cannot be in his place. He has asked me to say the following: “The purpose of the amendment is to probe the arrangements that should be put in place to ensure that there is compliance with the code of practice and consistency as between the different police forces and Crown Prosecution areas. The amendment proposes one way in which this can be achieved. There are others.”
The nature of the problem under the existing system is well known, but it is conveniently set out in a report written by Dr Cerys Gibson of Nottingham University and published by the Sentencing Academy in February 2021. This covered the regime of what are commonly known as out of court disposals, including the existing conditional cautions and simple cautions. Among the questions raised in the report, on page 15, it asks
“whether appropriate decisions are made, whether the use of OOCDs results in net widening and up-tariffing, and whether there is consistent decision-making in their use between and within police forces.”
As the report points out, leaving the concerns unaddressed risks
“undermining public confidence in the system of OOCDs.”
The report also noted:
“A key concern is whether the police follow the relevant guidance”.
It relied on the report of the Criminal Justice Joint Inspectorates that there was concern about inconsistencies in the use of out of court disposals,
“in particular for persistent and more serious offending”.
On page 16, the report drew attention to the findings of the CJJI that the use of out of court disposals “varied” between the 43 police areas.
The report sets out details of the methodology of accountability: internal accountability through recording, and external accountability. There were locally established scrutiny panels in some areas where the panel
“comprised of representatives from the police, CPS, magistrates, Office of Police and Crime Commissioner, youth offending teams”
and other persons interested in the criminal justice system. The report sets out details of concerns about this method of scrutiny, the need for research and the development of a consistent system. It also refers to Her Majesty’s Inspectorate of Constabulary, stating:
“As part of their Crime Data Integrity inspections, Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services … dip-test a sample of each force’s OOCDs to ensure they comply with the published rules and standards (HMIC 2015). These reports are published on the HMICFRS website and so are publicly available and may act as an effective, though less frequent, external form of accountability on OOCD decision-making.”
It is clear that some form of accountability for the new system is essential, for three reasons. First, the provisions for cautions are part of the justice system. For that reason, the process and use of cautions must be as open and transparent as possible. Secondly, the public need to have confidence in the system; they need to know that there is adherence to the code and consistency. Thirdly, the experience of the courts before the 1980s was that there was some inconsistency between  different parts of the country, which did not have an objective justification, and that inconsistency undermined public confidence. This was one of the reasons for the development by the Court of Appeal in the 1980s of guideline judgments and the subsequent evolution of sentencing guidelines.
These issues could be addressed in several ways, including the use of local panels and the involvement of magistrates. The noble and learned Lord, Lord Thomas, had hoped the Magistrates’ Association would wish to play such a role. This amendment puts forward an alternative by a simple and workable way of addressing the issues. It seeks to build on the work of Her Majesty’s Inspectorate of Constabulary and extend it to Her Majesty’s Crown Prosecution Service Inspectorate, given the role of the CPS in the proposed regime.
It is clear that, if it is known that there is to be a review for compliance and consistency by the inspectorates, this will help bring that about, quite apart from providing public confidence that compliance with the code and consistency are being achieved in practice. We support the noble and learned Lord’s amendment. Noble Lords may be bored, and I am exhausted, but I beg to move Amendment 170.

Lord Ponsonby of Shulbrede: My Lords, I want to say something from the Back Benches about my experience of sitting on scrutiny committees, which the noble Lord has just spoken about. I have sat on scrutiny committees for reviewing out of court disposals for both the British Transport Police and the Metropolitan Police. In my experience, they are good committees because they bring together a range of interested parties on whether out of court disposals are appropriate—magistrates, probation, CPS, police, YOTs and sometimes, in addition, there may be housing, education and health people from local government to review the appropriateness of out of court disposals.
In my experience, this system is extremely erratic and not systemised in any particular way. My experience is that the results of reviewing out of court disposals are not fed up through the Home Office, so when I have asked questions of both the MoJ and the Home Office, there is no way of reviewing whether out of court disposals have been appropriately used or of collating the numbers, because the use of scrutiny committees varies so much across the country—that is my understanding. I was interested to listen to the noble Lord, Lord Paddick, talk about the amendment tabled by the noble and learned Lord, Lord Thomas, and whether he is trying to introduce a code of practice to try to regularise these out of court disposal scrutiny committees. They are a good idea, but they need to be standardised across the country.

Lord Falconer of Thoroton: I am very much obliged to my noble friend Lord Ponsonby of Shulbrede for that intervention, which goes to an incredibly important point raised by the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Thomas of Cwmgiedd, which is that there needs to be proper scrutiny of the police being given a power to, in effect, punish people and impose conditions. There are two aspects to that, which the noble and learned Lord identified in his speech, so beautifully read by the noble Lord,  Lord Paddick, even though it is so late: first, that the code of practice is complied with and, secondly, that there is consistency throughout the country in relation to the application of out of court disposals. I would be very interested to hear what the Minister has to say on how that point will be dealt with. We support the amendment proposed by the noble and learned Lord, Lord Thomas of Cwmgiedd.
I also agree with Amendments 170, 171 and 190, which seek to ensure that a person may be authorised to give a discretionary or community caution only if they have been authorised by a prosecuting authority for those purposes and a prosecuting authority must be satisfied that that person has received adequate training and is suitable to carry out those functions. Amendment 190 is a consequential amendment on that. I support these amendments and am very interested to hear what the Ministry of Justice has to say about them. I cannot think that it would not agree with this; some level of quality must be required for somebody who is going to give that caution.
Finally, the noble Lord, Lord Paddick, made points to the effect that this will be more expensive. He did not mention, because he is too kind—or he may have done, but I missed it—the additional £13 million that the Commons paper identifies for the cost of introduction, in addition to the £105 million and £15 million. We are going to spend all this money to achieve no greater victim satisfaction and without any evidence that it reduces reoffending. Why?

Lord Wolfson of Tredegar: My Lords, the amendments we are talking to cover a little area and I will take them in turn if I may. I start with Amendments 170, 171 and 190. They remove the authority of a constable or investigating officer to be able to give a diversionary or community caution and in turn propose a set of preconditions that require that a prosecution authority be satisfied of the suitability, capability and training of a person before they are designated to issue a diversionary or community caution.
The position at the moment is that cautioning is mostly but not, it is fair to say, exclusively carried out by police constables. Cautioning by police dates back nearly 100 years and the police have become experienced in the application and use of cautions. At the moment, there are statutory restrictions around the use of simple cautions by the police and an existing statutory framework for their use of conditional cautions.
The framework provides a role for the DPP to authorise the use of cautions in particular circumstances. Police and prosecutors share responsibility for dealing with out of court disposals. The noble Lord, Lord Paddick, already knows this, but where police decide that an indictable-only offence should be dealt with by means of an out of court disposal, the case must be referred to a prosecutor to determine whether there is sufficient evidence for a realistic prospect of conviction and that it is in the public interest to deal with the case in this way.
These clauses do not change the approach set out in the director’s guidance and we believe this provides a necessary safeguard to the use of cautions for more serious offences. We believe that the police should be  empowered as professional decision-makers, while being given clear statutory guidance as to the use of cautions. The question of the adequacy of training to fulfil those functions, which underpins these amendments, is really one for the policing authorities.
In that regard, coming to the point made by the noble and learned Lord, Lord Falconer of Thoroton, we believe that the code of practice is the appropriate place to set out any safeguards, checks and balances that should be in place before any caution under the new two-tier framework is given.

Lord Falconer of Thoroton: What is the method of scrutiny of that code of practice by Parliament?

Lord Wolfson of Tredegar: I will come to that point. I will try to answer that question, but if I do not, I know the noble and learned Lord will remind me. However, I think I will come to it. I was just making the point that there will be safeguards, checks and balances under the new two-tier framework, an example of which may be a review by an officer of a higher rank before a decision to issue a caution is made.
Prosecution authorities are responsible for ensuring that authorised persons are suitably trained and competent to exercise this function appropriately. We believe it would be operationally unviable to have all officers personally subject to assessment and accreditation before they can issue a caution. We are working closely with police and other authorities to ensure that briefing and training take place prior to implementation of the new measures, and I therefore urge the noble Lord, Lord Paddick, to withdraw his amendment.
I turn now to Amendment 186A, on which the noble Lord, Lord Paddick, beautifully read the words of the noble and learned Lord, Lord Thomas of Cwmgiedd. We agree that scrutiny and monitoring of out-of-court disposals is vital to successful implementation, accountability and public perception. The problem with this amendment, though, is that it would have what I am sure are unintended consequences beyond the particular policy area, because it would impose a statutory duty on Her Majesty’s inspectorates of both the police and the CPS and could set a precedent that would adversely impact the independent nature of the inspectorate regime. Those two inspectorates are not regulators; they do not have power to enforce compliance. They support continuous improvement and learning by means of inspection. It is evidenced-based and consultative but it is not a regulatory approach and, because inspections may be thematic rather than recurring, it is right and proper for the inspectorate to make the independent assessment of when and how they should take place.
Over and above that, the amendment would have potential legal implications for the Crown Prosecution Service Inspectorate Act 2000. That is because Section 2 of that Act sets out that my right honourable and learned friend the Attorney-General should be consulted on proposed inspection programmes, and the Attorney-General’s Office may, by order, specify the form that those programmes or frameworks are to take. The amendment would therefore undermine the power of the Attorney-General in these circumstances.
As is the case for the current conditional caution, a code of practice will accompany these clauses of the Bill. I hope here to reply to the points put to me by the noble and learned Lord, Lord Falconer. This is the appropriate place to set out arrangements for scrutiny and transparency of the new framework to seek to ensure a consistent but appropriate approach. Alongside the regulations we have already addressed, the code of practice will be subject to the affirmative parliamentary procedure—a point that I received by WhatsApp because officials heard the question he put; it works sometimes. The Government will also carry out stakeholder engagement and consultation on the code, allowing for a collaborative approach with stakeholders and sufficient time to draft this without the pressure of the time constraints of the Bill.
Finally, I turn, with an eye on the clock, to the assertion or contention of the noble Lord, Lord Paddick, that Clauses 80 and 89 should not stand part of the Bill. These introduce rehabilitation and reparation conditions which may be attached to a diversionary or community caution respectively: it is the same wording for each, as the Committee will have seen. They have the objective of facilitating the rehabilitation of the offender, ensuring the offender makes reparation for the offence, or both. The conditions can be restrictive conditions, unpaid work conditions or attendance conditions. The clause specifies the activities which the offender may be restricted from undertaking, the maximum number of hours of unpaid work and the maximum number of attendance hours—a number that may be varied by regulations to allow flexibility. These too will be laid before Parliament for scrutiny. We believe that the real benefit here is having rehabilitative and reparative conditions as early on in the criminal justice process as the caution stage. That will, we hope, reduce pressure on court resource and time and act as a deterrent to further offending behaviour.
If I may just take a moment to respond, I think there were three questions that I should respond to briefly. The first was from the noble Lord, Lord Paddick, about data. As the Committee will know from previous exchanges, I am quite a fan of data. The position on this is that published data does not distinguish between the different categories of adult cautions. We currently have access only to aggregated data for both simple and conditional cautions given by the police. We do not have data on what conditions are attached to each conditional caution, and it is for that reason that we are committed to engaging with the stakeholders on the appropriate monitoring as we develop the secondary regulations for the new diversionary and community cautions. We hope to use that to improve the data that we hold centrally.
The second point put to me by the noble Lord was summarised by him, I think, as spending more to achieve nothing. If I can take it away from the rhetorical flourish, the position is that the three MoJ-led pilots now have a total of 15 police forces that have adopted the two-tier model. Although there has been some discussion of costs, the experience of all these forces shows that it can work and be upscaled or downscaled as appropriate to their force budget.
I do not want to take too much time at this hour going through the differences between Leicestershire or Avon and Somerset, and Devon and Cornwall, but we believe that the experience shows that it can be developed as a low-cost approach. Cambridge University’s evidence review found that out of court disposals with conditions appear to be promising in terms of reducing harm, including in cases of domestic violence. Although there might be costs, there can also be benefits, not only to the police but to other agencies, such as the CPS or Her Majesty’s Courts and Tribunals Service. I apprehend that may be a point we will come back to, because we have other groups dealing with cautions as well.
Finally, I pick up a point made from the Back Benches, for a change, by the noble Lord, Lord Ponsonby, that there is too much variation or a lack or a consistency in the use of out of court disposals across police forces. The noble Lord is, with respect, right that there are differences in the way cautions are given across forces. That is why, as I said earlier, we want to simplify the framework to reduce the inconsistency. We have to recognise, however, that there is ultimately an operational policing point here. Necessarily, therefore, because we have different police forces we will have different operational decisions, and different emphases in the way out of court disposals—

Lord Ponsonby of Shulbrede: If the noble Lord will give way, the point I was making is that there is an inconsistency in the scrutiny of out of court disposals, not just the out of court disposals themselves.

Lord Wolfson of Tredegar: Absolutely. Let me deal with the out of court disposals themselves. I hope I have answered that point. There will, we hope, be a greater consistency of approach, but there will be differences. As for the scrutiny, as I said earlier, the code of practice will, we hope, provide a level of consistency of scrutiny that we also want to make sure is part of this structure. As I said earlier, that will be subject to an affirmative SI.
I am conscious of the time. I think we have drifted into Tuesday, so perhaps I should just conclude by thanking the Committee for contributions and invite the noble Lord to withdraw the amendment, although I am sure the discussions will continue. I also beg to move that the clauses stand part of the Bill.

Lord Paddick: My Lords, it is completely unacceptable that the noble Lord has said on numerous occasions that, because of the hour, he is not going to go into detail in answering the issues that I have raised. We either scrutinise this Bill properly or we do not. I do not care what time of night it is; we will scrutinise this Bill effectively. That is the first point to make.

Lord Wolfson of Tredegar: To be clear, the only reason I made that point is because I have a very long answer—I am happy to read it—explaining the different ways particular police forces have responded to the point. Apart from that, I gave exactly the answer I would have done had it been four o’clock in the afternoon. I assure the noble Lord that I have not deleted one sentence from my notes on the answer.

Lord Paddick: In that case, I point out how completely inadequate the Minister’s answers have been. He completely did not address the research, which shows that there is no evidence that cautions with conditions attached are any more effective than simple cautions—there is no evidence. The noble Lord himself admitted that there cannot be any evidence because the Home Office does not keep any figures. It does not differentiate between conditional cautions and simple cautions; it just aggregates all cautions together. It also keeps no record of what conditions are applied in cases of conditional caution, so the Government have no evidence upon which to base this system, in which all cautions have to have conditions attached. They cannot demonstrate the efficacy of that system, and the research in the pilot forces also shows no impact on reoffending rates, little or no impact on victim satisfaction and significant increases in cost. The Minister has provided no reassurance on those issues at all.
As far as the amendments are concerned, conditional cautions are supposed to be about rehabilitation and reparation. How can an untrained police officer be an expert on what sort of rehabilitation a particular offender should undertake to have maximum impact on their reoffending? As both the noble and learned Lord, Lord Thomas, and the noble Lord, Lord Ponsonby, said, the problem is not only the inconsistency of whether the conditions that different forces attach will have any efficacy at all—the Minister admitted that there would be inconsistency between forces—but a lack of public confidence in the system the Government are proposing. In one force area, someone will have very stringent rehabilitation and reparation conditions attached; for almost exactly the same type of individual and the same sort of offence, a completely different system or set of conditions will be applied. How can that provide the public with any confidence that justice is being done, when completely different conditions are being attached to very similar offenders and offences in different parts of the country, unless the officers who are giving out these conditions have been specifically trained, told what the standard approach is and approved by the Crown Prosecution Service, as my amendments suggest?
The noble Lord said that the safeguards and checks and balances will be included in codes of practice. I will tell the Committee why such an approach is not  acceptable. With the Covert Human Intelligence Sources (Criminal Conduct) Act, it turns out that, despite the arguments that we made against the safeguards and checks and balances being relegated to codes of practice, the Government now accept that any police inspector, whether specifically trained in dealing with covert human intelligence sources or not, can authorise a CHIS to commit a crime. That person will be immune from prosecution, even though that inspector is not authorised by their force or trained to give that authority —it is in the codes of practice. But the Government have admitted, in a letter to me from the noble Baroness, Lady Williams of Trafford, that, if an untrained, unauthorised inspector authorised a CHIS to commit a crime, it would not be unlawful. That person would therefore be immune from prosecution. That is the danger of relegating safeguards, checks and balances to codes of practice and not having them in legislation.
The only thing I can take from what the Minister said is that this is really about saving court time and CPS time; I think I quote him accurately. It is not about preventing reoffending because we know that this system does not reduce it. It is about trying to take pressure off the courts, and that is no way to administer justice. We should give the criminal justice system the resources that it needs rather than taking the shoddy short cut to justice proposed in this part of the Bill. For the moment, I beg leave to withdraw the amendment.
Amendment 170 withdrawn.
Amendment 171 not moved.
Clause 77 agreed.
Clause 78 agreed.
House resumed.

Environment Bill
 - Returned from the Commons

The Bill was returned from the Commons with reasons and amendments. The Commons reasons and amendments were ordered to be printed.
House adjourned at 12.17 am.